.<fr^ 


A 
TREATISE 


ON 


THE  LIMITATION   OF  ACTIONS 


AT  LAW  AND  IN  EQUITY. 


TWlttb  an  appen&fr, 

CONTAINING  THE 

AMERICAN  AND  ENGLISH  STATUTES  OF  LIMITATIONS. 


By  H.  G.  WOOD, 

AUTHOR  OF  "THE  LAW  OF  NUISANCE8,"  "  MASTER  AND  SERVANT,' 

"  FIRE  INSURANCE,'1  "  LANDLORD  AND  TENANT," 

"  LAW  OF  RAILROADS,"  ETC. 


Ubtrfc  Edition 


By  JOHN  M.  GOULD,  Ph.D. 

AUTHOR  OF  THE  LAW  OF  WATERS,  JOINT  AUTHOR  OF  GOULD  &  TUCKER'S 

NOTES  ON  THh  U.  S    STATUTES.  EDITOR  OF  KENT'S 

COMMENTARIES  (14TH  ED.),  ETC. 


BOSTON: 

THE  BOSTON  BOOK  COMPANY, 

1901. 


T 
l9o  | 


Copy  rigid,  1882, 
By  H.  G.  Wood 


Copyright,  1893, 
By  The  Boston  Book  Co. 


Copyright ,  1901, 
By  The  Boston  Book  Company. 


v.  iii)  PABSOH8   PRINTING  cmmpanv, 

PBIHTER8  AM'  i.i. i  <  i ■inn  vpkiis, 

AI.IIAW,   N.    T. 


PREFACE  TO  THIRD  EDITION. 


Mr.  Wood's  treatise  upon  the  Law  of  Limitations  has  long- 
been  recognized  as  the  most  exhaustive  work  upon  the  subject 
existing  in  America  or  England.  The  second  edition,  the  final 
proofs  of  which  were  returned  to  the  printer  only  a  few  days 
before  the  author  died,  largely  extended  the  scope  of  the  original 
work  as  outlined  in  his  Preface,  more  than  two  thousand  cases 
being  there  added,  and  the  Appendix  embodying  the  American 
and  English  statutes,  having  been  thoroughly  revised.  In  this 
edition,  in, order  that  the  work  may  again  appear  in  a  single  vol- 
ume, those  statutes  have  been  much  reduced  by  omitting  all  but 
the  important  provisions  needed  by  the  practitioner;  but,  in  the 
provisions  thus  retained,  the  exact  language  of  the  statute  is 
given  —  a  matter  of  moment,  since  the  phraseology  often  differs 
in  like  clauses  in  different  States;  great  care  has  been  taken  to 
include  all  material  amendments;  and  lengthy  quotations  from 
the  older  cases  have  often  been  shortened.  In  the  older  States 
few  changes  have  been  made  in  these  statutes  in  recent  years, 
but  in  the  Western  States,  especially  when  a  territory  was  admit- 
ted to  statehood,  radical  changes  are  often  found.  In  this 
edition  the  citations  have  been  thoroughly  verified ;  all  the  latest 
decisions  of  note  are  added  in  new  notes  in  double  columns, 
which  discuss  many  new  questions,  such  as  the  effect  of  taking 
out  execution  upon  the  time  allowed  on  a  judgment;  pleading  or 
waiving  the  statute;  the  effect  of  State  statutes  in  the  Federal 
courts  and  in  equity,  and  of  injunctions  and  insolvency,  of 
paying  interest  or  dividends,  nuisances,  amendments,  dower, 
tacking  different  adverse  possessions,  etc. 

John  M.  Gould. 

Boston,  Mass.,  Oct.  /,  igor. 

[iii] 


CCWCO 


PREFACE 


The  radical  changes  wrought  in  the  statutes  of  limitations  in 
the  several  States  of  this  country  within  the  last  twenty  years, 
and  in  the  theories  applicable  thereto,  render  a  new  work  adapted 
to  the  present  condition  of  the  statutes  indispensable. 

I  have  endeavored  to  bring  together  in  one  volume  all  that  is 
material  upon  the  subject.  In  order  to  do  so  I  have  been  com- 
pelled to  precipitate  much  matter  into  the  notes,  which  would 
properly  have  found  a  place  in  the  text ;  but  this  method  will 
be  found  to  detract  from  the  symmetry  of  the  work,  rather  than 
its  usefulness,  as  the  index  is  very  full,  and  covers  the  notes  as 
well  as  the  text.  I  have  not  attempted  to  cite  all  the  cases 
involving  questions  of  the  application  or  construction  of  these 
statutes,  as  they  are  quite  too  numerous,  but  have  endeavored  to 
give  all  which  involve  difficult  questions,  and  such  as  are  authori- 
tative. I  have  given  in  the  Appendix  the  English  Statutes  of 
Limitations,  as  well  as  those  of  all  the  States  of  this  country, 
and  of  all  the  Territories,  so  far  as  their  statutes  were  accessible 
to  me.  These  statutes  will  be  found  reliable,  and  to  cover  all 
legislation  in  the  several  States  upon  the  matter  of  general  limita- 
tions to  date ;  and  I  have  made  arrangements  to  have  printed 
upon  slips  (which  can  readily  be  pasted  into  the  Appendix)  such 
changes  in  or  amendments  to  the  several  statutes  as  may  be 
made  from  time  to  time,  which  will  be  furnished  gratuitously  to 
any  member  of  the  profession  who  purchases  a  copy  of  the  work, 
who  will  forward  his  address  to  the  publishers,  so  that  the  exact 
state  of  the  statutory  law  may  at  all  times  be  represented  by  the 
Appendix 

In  a  work  of  this  character,  predicated  entirely  upon  statutes, 
and  the  law  growing  out  of  their  application  and  construction, 
and  involving  the  examination  of  such  a  large  number  of  cases, 
it  would  not  be  strange  if  some  errors  have  crept  into  it;  and  if 
any  are  discovered,  however  slight,  I  would  be  very  glad  to  have 
my  attention  called  thereto,  that   they  may  be   corrected    in  any 

M 


VI  PREFACE. 

future  editions.  I  have  given  the  gist  of  a  great  number  of 
cases  both  in  the  text  and  notes,  and  have  endeavored  to  make 
the  work  as  useful  as  is  possible,  in  the  space  allotted  me,  to 
that  class  of  lawyers  to  whom  a  complete  library  of  the  reports 
is  not  accessible. 

H.  G.  Wood. 

Boston,  Nov.  ist,  1882. 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

Statutes  of  Limitations  —  What  are  —  History  of  —  General 

Rules. 

PAGE. 

§       I.     What  are  Statutes  of  Limitation i 

2.  History  and  Origin  of 3 

3.  Adverse   Possession 5 

4.  Nature  of  Statutes  of  Limitation 5 

5.  Principles  on  which  founded 7 

6.  General  Rules.     Statute  having  commenced  to  run  will  not  stop     .  7 

7.  Bar  of  Statute  must  be  interposed  by  the  Debtor 17 

8.  The  Law  of  Limitations  a  Part  of   the  Lex  Fori 23 

9.  Distinction  where  Statute  gives  and  limits  the   Remedy     ....  30 

10.  Rule  when  Title  to  Personal  Property  is  acquired    by  Possession 

under  Statute  of  one  Slate 31 

11.  Constitutionality  of  Limitation  Acts 32 

12.  What  Statute  governs 40 

13.  Effect  of  Change  of  Statute,  as  to  Crimes 43 

14.  Rule  when  Title  to  Land  is  concerned 45 

CHAPTER  II. 

What  Actions  on  Simple  Contracts  may  be  barred. 

§  15.     No  Limitation  at  Common  Law 46 

16.  Causes    of    Action    on   Simple    Contracts    embraced    by   Statute  of 

James  1 47 

17.  Deposits  with  Bankers,  within  Statute  of  James  .     .         4Q 

18.  Distinction  when  Deposit   is  special 51 

19.  Illustrations  of  Application  of  Statute  in  Special  Cases 52 

20.  Assumpsit,  for  what  it  lies 54 

21".     For  Torts,  Assumpsit  lies,  when 58 

22.  Lapse  of  Statutory  Period   does   not  give   Title   to  Pledgee  of   Prop- 

erty, except °4 

23.  Clauses  in  the  Several  Statutes  that  cover  Simple  Contracts     ...  67 

24.  Account.     Nature  of  Action 70 

25.  Debt 73 

26.  Covenant 7° 

27.  Suits  in  Admiralty 77 

28.  Crimes 77 

[vii] 


Vlll  STATUTES   OF   LIMITATION. 


CHAPTER   III. 

Specialties.  page. 

§  29.     What  are 79 

30.  Judgments 80 

31.  Statutory  Provisions  as  to 83 

32.  Rent,  Actions  for 85 

33.  Avowry  for  Rent 87 

34.  Foreign  Judgments 87 

35.  Mixed  Claims,  Instance  of 88 

36.  Liability  created  by  Statute 92 

37.  Special  Statutory  Provisions  relating  to  Specialties 92 

38.  When  Concurrent  Remedy  is  given  by  Statute 94 

39.  Test  as  to  whether  Specialty  or  not 95 

40.  Actions  for  Distributive  Share  of  Estate "     .  97 

40  a.  Patents,  Application  of  Statute  to 97 

CHAPTER  IV. 
Available  for  and  against  whom. 

§  41.     Personal  Privilege 41 

42.  Limitations  by  Contract 102 

43.  Effect  of  War  upon  Conditions 106 

44.  Premature  Actions 106 

45.  When  Adjustment  is  essential 107 

46.  Effect  of  Appointment  of  Receiver 107 

47.  Parol  Contracts 107 

48.  Commencement  of  Action,  What  is io7 

49.  Delay  induced   by  Defendant 108 

50.  When  Claim  is  regarded  as  arising 109 

51.  Waiver  of  Limitation 109 

52.  Against  whom  Statute  may  be  enforced.     State  .     .          in 

53.  Municipal  Corporations.     Counties,  etc 118 

CHAPTER  V. 
Computation  of  Time. 

§  54.     "  From  "  and  "  after  " 119 

55.  Meaning  of  the  Word  "  Month  " 125 

56.  When  Act  is  to  be  done  "  by  "  a  Certain  Day 126 

57.  Year 126 

CHAPTER  VI. 

Equity,  Adoption  of  Statute  by  Courts  of. 

£  58.     Adoption  of  Statute  in  Cases  involving  Concurrent  Jurisdiction   .     .  128 

59.     Rule  as  to  purely  Equitable  Matters 141 


TABLE   OF   CONTENTS.  ix 

PAGE. 

§  60.     Stale  Demands 146 

61.  Effect  of  Acquiescence 156 

62.  Distinction  between  Laches  and  Acquiescence 158 

63.  When    Equity    will    supply    Remedy    upon    a  Claim   barred   by  the 

Statute 158 

CHAPTER  VII. 

Removal  of  the  Statutory  Bar.     Acknowledgments. 

§  64.     General  Reasons  for  Judicial  Exceptions .     .  160 

65.  Historical  View  of  the  Law  relating  to  Acknowledgments    ....  163 

66.  Acknowledgments    apply   only    to    Assumpsit.     Theory   on    which 

founded 166 

67.  Crucial  Test.     Rule  in  A'Court  v.  Cross 170 

68.  Present   Theory 170 

69.  Express  or  Implied  Refusal  to  pay 190 

70.  Essential  Requisites  of  an  Acknowledgment 194 

7r.     Bare  Acknowledgment 197 

72.  Promise  to  settle 201 

73.  Failure  to  deny  Liability.     Expressions  of  Regret,  etc 203 

74.  Effect  of  Acknowledgment 207 

75.  Offer  to  pay  in  Specific  Property 207 

76.  Promise  not  to  plead  the  Statute 207 

77.  Conditional  Acknowledgment 209 

78.  Hope  to  pay 216 

79.  By  and  to  whom  must  be  made 219 

80.  Offer  to  arbitrate.  Recital  in  Deeds,  etc 225 

81.  When  Acknowledgment  must  be  made 227 


CHAPTER  VIII. 
Acknowledgments  in  Writing. 

§  82.     Lord  Tenterden's  Act 230 

83.  Similar  Statutes  in  this  Country 231 

84.  Effect  of  Statutes  requiring  a  Writing 232 

85.  Sufficiency  of.     Instances 233 

86.  Acknowledgment  must  cleary  refer  to  the  Particular  Debt  ....  235 

87.  Distinction  between  Absolute   and   Qualified    Promises,  etc.     Illus- 

trations    237 

88.  Promise,  etc.,  must  be  definite.     Amount  need  not  be  stated    .     .     .  239 

89.  Instances  of  Sufficient  Acknowledgments 240 

90.  Direction  in  a  Will,  to  pay  Debts 241 

91.  Debts  due  from  Corporations 241 

92.  Entry  of  Debt  in  Schedule,  Deed,  etc 241 

93.  Sufficiency  of,  for  the  Court,  except 242 

94.  Must  be  signed  by  the  Debtor 243 

95.  Promise  must  bind  the  Debtor  personally.     Conditions,   Effect  of     .  243 


X  STATUTES   OF    LIMITATION. 

CHAPTER  IX. 
Part  Payment,  Acknowledgment  by. 

PAGE. 

§  96.     Effect  of,  generally 245 

97.  Must  be  made  as  Payment  of  Part  of  Debt 2j~ 

98.  Must  be  Nothing  to  repel  Inference  of  Admission  that  more  is  due  .  250 

99.  Payment  of  Representatives  of  Debtor 252 

100.  Rule  in  Tippets  v.   Heane 253 

101.  Payment  must  be  authorized,  and  voluntary 255 

102.  Rule  in  Linsell  v.  Bonsor 260 

103.  Payment  made  to  Agent  binding,  when 261 

104.  Principle  and  Requisites  of  an  Acknowledgment  by  Part  Payment     .  261 

105.  Effect  of  Part  Payment  of  Principal  or  Interest 262 

106.  Rebuttal  of  Implication.     Indeterminate  Debt 266 

107.  Payment  into  Court     .     , 267 

108.  Identity  of  Debt 267 

109.  Questions  for  the  Jury 268 

no.     General  Rule  as  to  Appropriation  of  Payments 268 

in.     Oral  Proof  of  Part  Payment 273 

112.  Part  Payment  need  not  be  in   money 274 

113.  Test  as  to  what  amounts  to  Part  Payment 276 

114.  Part  Payment  by  Bill  or  Note 277 

115.  Indorsements   on   Noles,  etc 277 

116.  Evidence  of  Part  Payment 282 

CHAPTER  X. 

When  Statute  begins  to  run.     Contracts. 

§  117.     Must  be  Party  to  sue  or -be  sued 284 

118.  When  Demand  is  necessary  to  start  the  Operation  of  the  Statute     .  286 

119.  General  Rules  as  to  when  there  is  a  Condition  Precedent  ....  295 

120.  Contracts  for    Services 301 

121.  Rule  as  to  Services  of  Attorneys 304 

122.  When  Attorney  is  charged  with  Misfeasance  or  Malfeasance  .     .     .  307 

CHAPTER  XL 

Agents,  Factors,  etc. 

§  123.     Agents,  Factors,  etc 311 

CHAPTER  XII. 
Bills,  Notes,  Checks,  etc. 

§  124.     When  payable  on  Demand 319 

i2^.     Notes  or  Bills  payable  "  after  Demand,'"  "  after  Sight,"  etc.  .    .    .  322 
.im]  Bills  payable  by  Instalments 326 


TABLE    OF   CONTENTS.  xi 

PAGK. 

§  127.     Coupons,   Interest  Warrants,  etc ....  327 

128.  Notes  payable  in  Specific  Articles 329 

129.  Notes  subject  to  Assessment 330 

130.  Bill  of  Exchange  payable  at  Particular  Place 332 

131.  Bills  accepted  afler  Maturity 332 

132.  Bills  and  Notes  subject  to  Grace 333 

133.  Notes  payable  upon  the  happening  of  a  Contingency 334 

134.  Indorser  of  Notes  or  Bills 335 

135.  Acceptor  of  Bill 336 

136.  Drawer  of  Bill 336 

137.  Suspension  of  Statute  by  Agreement  of  the  Parties 337 

137  a.  Goods  sold  on  Credit  to  be  paid  in  Note  within  Certain  Time     .     .  339 

138.  Bank  bills 339 

139.  Witnessed  Notes 340 

140.  Checks 343 


CHAPTER  XIII. 

Miscellaneous  Causes  of  Action. 

§  141.     Contracts,  Express  and  Implied 346 

142.  Deposits,  Certificates  of  Deposits,  etc 349 

142  a.  Money  received  by  one  for  Use  of  Another 352 

143.  Money  misappropriated 353 

143a.  Forged  or  Invalid  Instruments 354 

144.  Money  had  and  received 355 

I44<z.  Implied  Warranty 356- 

145.  Sureties,  Indorsers,  etc 356 

146.  Contract  of  Indemnity,  Guaranties,  etc 363 

147.  Money  paid  for  Another 366 

148.  Action  under  Enabling  Acts 366 

149.  Actions  against  Stockholders  of  Corporations 360 

150.  Slock  Subscriptions 369 

151.  Money  payable  by  Instalments 370 

152.  Over-payments.     Money  paid  by  Mistake 371 

153.  Failure  of  Consideration 372 

154.  Sheriffs,  Actions  against,  for  Breach  of  Duty 374 

155.  Fraudulent  Representations  in  Sales  of  Property 376 

156.  When   Leave  of  Court  to  sue   is   necessary.     Effect  of,   on  Com- 

mencement of  Limitation 377 

.  157.     Orders  of  Court 377 

158.  Properly  obtained  by  Fraud 378 

159.  Promise  to  marry 378 

160.  Contracts  void   under  Statute  of  Frauds,   Actions  for  Money  paid 

under 378 

161.  Against  Heirs,  when  Tenancy  by  Curtesy  or  Dower  exists     .     .     .  379 

162.  Actions  against  Sureties  on  Administrator's  Bonds 379 

163.  Actions  against  Guardians,  by  Wards 380 

164.  Assessments.  Taxes,  etc 381 


xii  STATUTES   OF   LIMITATION. 

PAGE. 
§  165.     Agreement  to  pay  Incumbrances 38r 

166.  General  Provisions 382 

167.  For  Advances  upon  Property 382 

168.  Usurious  Interest 382 

169.  Between  Tenants  in  Common  of  Property 383 

170.  When  the  Law  gives  a  Lien  for  Property  sold 383 

171.  Co-purchasers,  Co-sureties,  etc 383 


CHAPTER  XIV. 

Specialties. 

§  172.  Sealed  Instruments 385 

173.  Covenants,  Quiet  Enjoyment,  etc 389 

174.  Covenants  of  Warranty,  against  Incumbrances,  etc 398 

175.  Bonds 399 

176.  Effect  of  Acknowledgment  of  Payment  on  Specialties 402 


CHAPTER  XV. 
Torts  quasi  e  contractu. 

177.  Time  runs  from  Date  of 404 

178.  Consequential  Injury 405 

179.  Negligence 4°8 

180.  Nuisances 410 

18  r.  Action  must  be  brought  before  Prescriptive  Right  has  been  acquired.  412 

182.  What  requisite  to  establish  Prescriptive  Right 414 

183.  Trover 4J8 

184.  Trespass,  Assault,  etc 421 

185.  Criminal  Conversation 422 

186.  Seduction        423 

187.  Failure  to  perform   Duty  imposed  by  Statute 423 


CHAPTER  XVI. 
Executors  and  Administrators. 

188.  Executor  may  pay  Barred  Debts  or  not,  in  his  Discretion   ....  424 

189.  Effect    of    Statute    when    Creditor    is    Executor  or   Administrator; 

when  Debtor  is  Executor,  etc 431 

tgo,      Acknowledgment  by  an  Execulor 433 

[91      Wh  it  Acknowledgment  by  an  Executor  is  sufficient 130 

192     Where  Executor  is  also  Devisee  in  Trust 440 

193.     Whip-  Statute  has  run  againsl  Debt  before  Testator's  Death  .     .     .  440 

i',l.     When  Statute  has  begun  to  run  during  the  Life  of  the  Testator  .     .  140 

195.     Executors  de  wn  Tort 445 


TABLE    OF   CONTENTS.  Xlii 

PAGE. 

§  196.     Statutory    Provisions   relative   to   Suits    in    Favor    of    Decedents' 

Estates 447 

197.  When  Farties  in  Interest  may  set  up  the  Statute 449 

198.  Right  of  Executor  to  set  off  Debt  barred 450 

199.  Rule  in  Equity  as  to  Claims  against  Decedent's  Estate 450 


CHAPTER  XVII. 

Trusts  and  Trustees. 

§  200.  General  Rule 456 

201.  Express  Trusts 465 

202.  Assignees  in  Bankruptcy,  Insolvency,  etc 466 

203.  Cestui  que  Trust  in  Possession 467 

204.  Guardians 469 

205.  Executors  as  Trustees 469 

206.  Executor  or  Administrator  of  a  Trustee 473 

207.  Power  to  sell  Property 473 

208.  Effect  of  Cestui  que   Trust  when  Trustee  is  barred.     Sale  of  Trust 

Estate 473 

209.  Factors  and  Agents 475 

210.  Partners 477 

211  Acknowledgment  by  one  Partner 479 

212.  How  Trustee  may  put  Statute  in  Operation  in  his  Favor    ....  480 

213.  Exceptions  to  the  Rule  relative  to  Express  Trusts 483 

214.  Stale  Trusts  not  favored  in  Equity 484 

215.  Constructive  or  Resulting  Trusts 485 

216.  Mistake  of  Trustee  in   Possession 486 

217.  Funds  of  Societies  vested  in  Trustees 487 

218.  The  Liability  of  Trustee  for  Breach  of  Trustee  creates  Trust  Debt  .  487 

219.  Vendor  and  Vendee  of  Land ' 488 

220.  Purchaser  of  Property  for  Benefit  of  Another 490 


CHAPTER   XVIII. 
Mortgagor  and  Mortgagee. 

§  221.     Relation  of,  to  the  Property 492 

222.  Distinction   between   Note   or    Bond,    and   the   Mortgage  given  to 

secure  its  Payment.     Periods  of  Limitation  as  to,  in  the  several 
States 499 

223.  Statutory  Provisions  relative  to  Mortgages 504 

224.  When  Statute  begins  to  run  in  Favor  of  cr  against  the  Mortgagor  .  507 

225.  Right  of  Redemption  barred,  when 509 

226.  When  Mortgagor  is  in  Possession  of  a  Part  of  the  Premises  .     .     .  511 

227.  Liability  of  Mortgagee  in  Possession 511 

228.  Welsh  Mortgages 512 

229      Presumption  of  Payment.     Effect  of  Part  Payment 513 


xiv  STATUTES    OF    LIMITATION. 

PAGE. 

§  230.     Effect  of  Acknowledgment  or  New  Promise  upon  the  Mortgage  .     .  515. 

231.  Effect  of  Fraud  on  Pari  of  Mortgagee 517 

232.  Distinction     between     Equitable     Lien    for    Purchase  money    and 

Mortgage 517 

233.  Distinction  between  a  Pledge  and  a  Mortgage.     Difference  in  Appli- 

cation of  Statute  to  one  and  the  other 519 

234.  Discharge  of  Mortgage  Debt,  Effect  of 520 

235.  Mortgagee  in  Possession 521 

236.  Absolute  Conveyances,  but  in  fact  Morlgages 523 


CHAPTER  XIX. 
Disabilities  in  Personal  Actions. 

§  237.     Saving  Clauses  in  Statute  in  Favor  of  Plaintiffs 526 

238.  Infancy 533 

239.  Insane  Persons,  Non  Compotes,  etc 534 

240.  Coverture 535 

241.  Imprisonment 540 

242.  Alien    Enemy 541 

243.  Injunction 541 

244.  Absence  of  Defendant  from  State,  Statutory  Provisions  as  to     .     .   543 

245.  What  constitutes  an  Absence  from  the  State 547 

246.  Joint  Debtors,  Absence  of  one,  Effect  of 550 

247.  Residence  need  not  be  continuous 550 

248.  Absconding  Debtors 553 

249.  Concealment 553 

250.  Foreign  Corporations 553 

251.  Cumulative  Disabilities 554 

252.  Disability  must  be  one  provided  for  by  Statute 558 

253.  Disability  of  Defendants 560 


CHAPTER  XX. 

Adverse  Possession  and  Real  Actions. 

254.  Title  by,  under  Statutes        562 

255.  Statutory  Provisions  as  to  Adverse  Possession        567 

256.  What  constitutes  a  Disseisin  under  these  Statutes 569 

257.  Entry  or  Possession  without  Color  of  Title 578 

258.  Occupancy  where  Premises  are  not  inclosed 5S2 

259.  Entry  and  Possession  with  Color  of  Title 588 

2^0.  Executory  Contracts,  etc.,  Possession  under 600 

261.  Mixed  Possession 605 

1(11.  Limits  upon  the  Operation  of  Possession  by  Construction  ....  608 

2^3.  Possession  by  Mistake 610 

■z<>\.  Grantor  in    Possession 612 

205.  Landlord  and  Tenant 613 


TABLE   OF   CONTENTS.  XV 

PAGE. 

§  266.     Co-tenants 620 

267.  What  Possession  will  sustain  Constructive  Possession 622 

268.  How  Adverse  Possession  may  be  proved 630 

269.  Continuity  of  Possession 631 

270.  How  the  Continuity  of  the  Possession  may  be  broken 635 

271.  Tacking  Possession 640 

272.  Effect  of  bringing  Ejectment 644 


CHAPTER  XXI. 

Dower. 

§  273.     Not  within  the  Statute,  unless  made  so  expressly 645 

CHAPTER  XXII. 

Effect  of  Fraud. 

§  274.     Statutory  Provisions  as  to 648 

275.  Equitable  Rule  in  Cases  of  Concealed  Fraud 651 

276.  Instances  in  which  the  Statute  will  not  run  until  Fraud  discovered     .  656 

CHAPTER  XXIII. 

Mutual  Accounts,  &c. 

§  277.     Statutory  Provisions  as  to 663 

278.  What  are  Mutual  Accounts ....  665 

279.  Merchants'  Accounts 668 

280.  Stale  Accounts 669 

CHAPTER  XXIV. 
Set-off,  Recoupment,  &c. 

§  2S1.     Set-off,  when  Statute  begins  to  run  against 672 

282.  Bringing  of  Action  suspends  Statute  as  to  Defendant's  Claims  which 

go  to  reduce  Plaintiff's  Claim 673 

283.  Executor  may  deduct  Debt  due  Estate,  when 674 

284.  Statutory  Provisions  as  to 675 

CHAPTER  XXV. 
Co-contractors,  &c. 

§  285.  Statutory  Provisions  as  to 676 

2S6.  Grounds  upon  which  Doctrine  of  VVhitcomb  v.  Whiting  is  predicated,  678 

287.  Present  Doctrine  in  this  Country 67-) 

288.  Assent  of  a  Co-contractor  to  a  Part  Payment  by  Another,  Effect  of.  682 


XVI 


STATUTES   OF   LIMITATION. 


CHAPTER  XXVI. 


§  289 
290 
291 
292 
293 
294 
295 
296 


Judicial  Process. 

page. 

When  Action  is  treated  as  commenced 684 

Statutory  Provisions  relating  to 685 

Date  of  Writ  not  conclusive 688 

Filing  Claim  before  Commissioners.     Pleading,  Set-off,  etc.   .     .     .  688 

Mistaken  Remedy,  etc 688 

Amendment  of  Process 689 

Must  be  Action  at  Law 690 

Abatement  of  Writ,  Dismissal  of  Action,  Reversal  of  Judgment,  etc.  691 


Appendix  of  Statutes 
Index        


695 

801 


TABLE  OF  GASES. 


[The  references  are  to  the  sections.] 


A. 

SECT. 

5ECT. 

Abbay  v.  Hill 

"7,  277 

Adams  Express  Co.  v. 

Blank 

no 

Abbey  Homestead  Assoc,  v 

Willard  257 

v.  Reagan 

51 

Abbott  v.  Abbott 

263 

Adamson  v.  Davis 

11 

v. 

Cromartie 

265 

v.  Smith 

239 

251 

v. 

Keith 

278 

Addams  v.  Seitzinger 

105, 

115 

116 

v. 

McElroy 

194 

Adger  v.  Alston 

6 

v. 

North  Andover 

275 

Adkins  v.  Tomlinson 

271 

Abell 

v.  Harris              214, 

254,  256,  276 

Adlard  v.  Muldoon 

25 

Abendroth  v.  Manhattan  R 

.  Co.          61 

Agar  z\  Young 

265 

Abercrombie  v.  Baldwin 

266 

Agee  v.  Williams 

294 

v. 

Butts 

68,  71 

Agency  Co.  v.  Short 

58 

V, 

Sheldon 

188 

Agnew  v.  Fetterman 

79 

,  81 

205 

Aborn 

v.  Burnett 

236 

Ahl  v.  Johnson 

219 

Abrah 

am  v.  Ordway 

59 

Ahnent  1.  Zaun 

6 

Abrah 

ams  v.  Swann 

86,  87 

Aiken  v.  Bloodgood 

35 

Acheson  v.  Shenk 

29 

Ailot  v.  Aubert 

163 

Acker 

v.  Acker 

12,  179,  240 

Ainsfield  v.  More 

276 

Ackerman  v.  Sherman 

79 

Ainslee  v.  Wilson 

145 

A'Court  v.  Cross 

68,  85,  97 

Airy  v.  Smith 

70 

v. 

Smart 

69 

Ake's  Appeal 

26 

Adair 

v.  Mette 

271 

Ala.  &  Vicks.  Ry.  Co. 

v.  Jones 

IIC, 

,177 

v. 

Shaw 

218 

Alabama  Bank  v.  Dalton 

4 

252 

Adam 

v.  Bristol 

190 

Ala.  Gt.  So.  R.  Co.  v. 

Shahan 

180 

Adams  v.  Adams 

20 

v.  Thomas 

294 

v. 

Barry 

189 

Albany  v.  Abbott 

141 

v. 

Carroll 

277,  278 

Albany  Com.  Bank  v. 

Hughes 

17, 

142 

v. 

Clayton 

21 

Albion  Bank  v.  Burns 

I45. 

v. 

Corbin 

24 

Albut  v.  Nilson 

267* 

v. 

Fassett 

18S 

Alcorn  v.  Sadler 

269 

v. 

Fort  Plain  Bank 

16,  121 

Alden  v.  Grove 

259 

v. 

Fullam 

260 

Alderson  v.  Merrill 

265 

v. 

Guerard 

262 

v.  Miller 

265 

V. 

Guice 

260 

v.  White 

229 

V. 

Jones 

"7 

Aldous  v.  Cornwell 

124 

z: 

Orange  County  Bank         17,  142 

Aldrete  v.  Demitt 

87 

z: 

Patterson 

277,  278 

Aldrich  v.  Campbell 

149 

v. 

Taylor 

211 

v.  Morse 

96 

105 

V. 

Tiernan 

271 

v.  Skinner 

149 

V. 

Torrey 

73 

Alexander  v.  Macauley 

178 

[xvii] 


XV111 


STATUTES   OF   LIMITATION. 


Alexander  v.  McMurry 
v.  Pendleton 
v.  Stewart 
v.  Tarns 

v.  Westmoreland  Bank 

Allan  v.  Gomme 

Allcock  v.  Ewen  64,  69,  73 

Allemania  F.  Ins.  Co.  v.  Peck  42 

Allen,  Ex  parte  188 

v.  Babbington  173 

v.  Blakeway  259 

v.  Boggess  258 

v.  Brown  no 

v.  Chatfield  265 

v.  Collier  71 

v.  Collins  68 

v.  De  Groodt  259 

v.  Early  233 

v.  Farrington  188 

v.  Holton  256,  257 

v.  Ladd  155 

v.  McNew  25 

v.  Maddox  281 

v.  Mann  290 

v.  Mille  155,  274 

v.  Moer  188 

v.  Portland  Stage  Co.  290 

v.  Rivington  256 

v.  Sawtelle  296 

v.  Sawyer  172 

v.  Smith  41,  211 

v.  Thayer  265 

v.  Walton  79,  85 

v.  Webster  64,  68,  69,  70,  71,  76,  285 

v.  Woonsocket  Co.  211 

Allis  v.  Moore  239,  251 

Allison  v.  Frisby  145 

v.  James  64,  68,  70 

r.  Pennington  70 

v.  Waldham  146 

AUmendinger  v.  McHie  259 

Almy  v.  Winsiow  139 

Alsbrook  v.  Hathaway  21 

Alsop  v.  Bell  197 

v.  Riker  59,  200,  276 

Alston    v.  Alston  163,  215 

v.  Collins  259 

v.  Hawkins  15 

v.  State  Bank  105,  115 

v.  Trollope  188 


SECT. 

SECT. 

212 

Alstyne  v.  Lemons 

30 

7 

Altemaii  v.  Campbell 

259,    267 

271 

Altemus  v.  Long 

26l 

201 

v.  Trimble 

26l 

18 

Alton  v.  111.  Trans.,  &c. 

Co. 

52,  53 

182 

Alvord  v.  Marsh 

195 

i>    Syracuse  Savings  Bank  61 

Ament  v.  Wolf,  259,  267 

American  Bible  Society  v.  Hebard      19 
Am.  Brewing  Co.  v.  Berner-Mayer 

Co.  280 

Am.  Credit  Indemnity  Co.  v.  Ellis     187 
Am.   Pneumatic  Tool  Co.  v.  Pratt 

&  Whitney  Co.  40a 

Ames  v.  Brooks  200 

v.  Le  Rue  25 

v.  New  York  Central  Ins.  Co.       49 

v.  New  York  Ins.  Co.  42 

v.  New  York  Union  Ins.  Co.         42 

Amesbury  v.  Bowdilch  Ins.  Co.  42 

v.  Mutual  Fire  Ins.  Co.  42 

Amole's  Appeal  6,  117 

Amory  v.  Lawrence  222,  235 

Amos  v.  Bennett  16 

v.  Campbell  35,  199 

v.  Smith  113 

Amoskeag  Manfg.  Co.  v.  Barnes       188 

v.  Spear  61 

Amott  v.  Holden  119,  175 

Amy  v.  Dubuque  127 

z>.Watertown      6,  242,  244,  252,  275 

Anders  v.  Meredith  266 

Anderson  v.  Akard  20 

v.  Baxter  58,  224 

v.  Canter  258 

v.  Hygeia  Hotel  Co.  179 

v.  Northrop  259 

v.  Robertson  115 

v.  Sanderson  79 

v.  Washabaugh  146 

Andes  Ins.  Co.  v.  Fish  51 

Anding  v.  Davis  224,  235 

Andres  v.  Andres  266 

Andress's  Appeal  117 

Andrew's  Case  173 

Andrew  v.  Nantasket  Beach  R.  Co.     260 

Andrews  v.  Allen  24 

v.  Brown  71,  205 

v.  Farmers  L.  &  T.  Co.  61 

v.  Hartford,  &c.  R.  R.  Co.      7,  194 


TABLE   OF   CASES. 


XIX 


SECT. 

Andrews  v.  Hue 

kabee 

188 

v. 

Montgomery 

35 

V- 

Mai  ford 

258 

269 

271 

v. 

Murphy 

24 

v. 

Paradise 

173 

v. 

Roanoke 

Building 

Ass' 

n 

149 

2?m 

Smiihwic 

k 

212 

v.  Sparhawk  199 

Angrove  v.  Tippett  136 

Ankeny  v.  Penrose  I72 

v.  Pierce  265 

Annapolis,  &c.  R.  R.  Co.  v.  Gantt     221 
Anonymous       35,  54,  173,  180,  199,  259 

App  v.  Driesbach  205,  277 

Applebv  v.  Obert  260 

Appleton  v.  Bascom  145 

v.  Edson  176,  229 

Araphoe  Village  v.  Albee  53 

Arbitration    Between    the  Ashley 

and  Tildesley  Coal  Cos.,  Re  275 

Archbold  v.  Scully  62,  226 

Archibald  v.  N.  Y.  Cent.  R.  Co.         258 

Arden  v.  Arden  205 

Arey  v.  Stephenson  68 

Argall  v.  Bryant  155 

v.  Kelso  179 

Argotsinger  v.  Vines  258,  267 

Armant  v.  New  Orleans,  &c.  R.  Co.   118 

Armfield  v.  Moore  245 

Armistead  v.  Brooke  66,  no 

Armour  v.  White  259 

Armstrong  v.  Campbell  58,  200 

v.  Croft  41 

v.  Dalton  53 

v.  Levan  66 

v.  Risteau  257 

v.  Smith  123 

Arndt  v.  Arndt  30 

v.  Griggs  254 

Arnold  v.  Arnold  194 

v.  Booih  30 

v.  Dexter  68 

v.  Downing  96,  100,  101,  105 

v.  Garth  259 

v.  Hickman  35 

v.  Hudson   River  R.  R.  60 

v.  United  States  54 

Arrington  v.  Liscom  223,  235 

v.  McLemon  275 

Arrowsmith  v.  Bulingame  259 


SECT. 

Arthur  v.  Saunders  20 

Artz  v.  Grove  236 

Ascutney  Bank  v.  McKormsby  21 

Ash  v.  Hayman  68,  78 

v.  Patton  64,  6S,  69 

Ashbrook  v.  Quarles  n,  12,  251 

Ashby  v.  James  78,  278 

v.  Washburn  86 

Ashley  v.  Hill  277 

Ashlin  v.  Lee  108 

Ashmead  v.  Kellogg  183 

Ashton  v.  Martyn  173 

Ashurst's  Appeal  19,  212 

Askew  v.  Hooper  59 

Astbury  v.  Astbury  190 

Aston  v.  Aston  58 

Astor  v.  Turner  221 

Atchison,  &c.  R.  Co.  v.  Burlingame 

Township  118 

Atherton  v.  Johnson  258 

Atkins  v.  Bordman  181 

v.  Tredgold      79,  145,  190,  285,  287 

Atkinson  v.  Bradford  Building  Soc. 

17.  54,  "8 

v.  Dunlap  II,  12 

v.  Patterson  229 

v.  Robinson  60 

Atkyns  v.  Horde  3,  254,  256,  266 

Atlantic  Bank  v.  Harris  276 

v.  Merchants'  Bank  140 

Attorney-General  v.  Fishmongers' 

Co.  200 

v.  Del.  &  B.  B.  R.  Co.  61 

v.  Eastlake  60,  61 

v.  Exeter  184 

v.  Federal  St.  Meeting-House     212 
v.  Holham  265 

v.  McLean  245 

v.  Magdalen  College  52 

v.  N.  Y.  &  L.  B.  R.  Co.  61 

v.  Portsmouth  258 

v.  Purmort  59 

v.  Revere  Copper  Co.  180 

Atwater  v.  Bodfish  182 

v.  Fowler    58,  60,  210,  211,  279,  280 
v.  Townsend  8 

Atwood  v.  Coburn  73 

v.  Mansfield  265 

v.  Rhode  Island  Agr.  Bank  58,  188 
Aubry  v.  Fortescue  58 


XX 


STATUTES   OF   LIMITATION. 


SECT. 

Aultman  &  Taylor  Co. 

v.  Syne 

54 

Aurora  v.  West 

127 

Austin  v.  Barrett 

276 

v.  Bailey 

270 

v.  Bostwick 

70,  77 

81,  285 

v.  Jackson 

188 

v.  Moore 

175 

v.  Rust 

259 

Avant  v.  Sweet 

66 

Averill  v.  Taylor 

221 

Avery  v.  Pixley 

55 

v.  Stewart 

54 

Avritt  v.  Russell 

58 

Ayer  v.  Hawkins 

96,  97. 

105,  no 

Ayers,  Re 

52 

v.  Richards 

68,  70,  72,  81 

Aylett  v.  King 

60 

v.  Robinson 

68 

Aymar  v.  Bill 

221 

Ayres  v.  Waitee 

21, 

222,  230 

Ayton  v.  Bolt 

77 

B. 

Babcock  v.  Utter 

260 

v.  Wyman 

236 

Bachman  v.  Roller 

68,  79 

Backestoss  v.  Com'th 

172 

Backhouse  v.  Bonomi 

173. 

178,  180 

Bacon  v.  Gray 

238 

v.  Mclntire 

172,  229 

v.  Rives 

200,  212 

v.  Waller 

54 

Badger  v.  Arch 

68,  79 

v.  Badger 

58  60, 

200,  213 

v.  Kelly 

188 

Badlam  v.  1  ucker 

22 

Bagg's  Appeal 

12 

Bagley  v.  Bates 

25 

v.  Wallace 

52 

v.  Ward 

295 

Baildon  v.  Walton 

98 

Bailey  v.  Appleyard 

182 

v.  Bailey 

64,  68 

,  70,  190 

v.  Carter 

58,  222, 

224,  235 

v.  Corliss 

288 

Crane                68,  70,  73 

,  86,  115 

v.  Clover 

275 

v   Hall 

154 

v.  Hughes 

173 

v.  Lansing 

127 

Bailey  v.  Shannonhouse 

v.  Woodbury 
Bailie  v.  Irwin 
Baillie  v.  Inchiquin 

v.  Sibbald 
Baily  v.  Doolittle 
Baines  v.  Williams 
Baird  v.  Blaigrove 

v.  Evans 

v.  Ratcliff 

v.  Walker 
Baker  v.  Atlas  Bank 

v.  Baker 

v.  Biddle 

v.  Boozer 

v.  Brown 

v.  Bush 

v.  Chase 

v.  Corey 

v.  Cummings 

v.  Fuller 

v.  Johnson  County 

v.  Joseph 

v.  Martin 

v.  McFarland 

v.  Morris 

v.  Noll 

v.  Oak  wood 

v.  Stackpoole 

v.  Stonebraker 

v.  Swan 

v.  Whiting 
Balch  v.  Onion 
Balcom  v.  Richards 
Baldro  v.  Tolmie 
Baldwin  j'.  Calkins 

v.  Campbell 

v.  Cole 

v.  Newark 

v.  Peach 
Balkam  v.  Woodstock  Iron  Co. 
Ball  v.  Cox 

v.  Lawson 

v.  Nye 

v.  Ray 

v.  Wyeth 
B;illard  v.  Dyson 
Ballenger  v.  Barnes 
Ballou  v.  Taylor 
Bait.  &  O.  R.  R.  Co.  v.  Glenn 


SECT. 

35.  179 
161 
190 

58,  71 
58,65 

259 
no,  252 

35 

259 

137 

123,  209 

149.  "79 

6,  113 

58,  59 

184 

6,  194 

7 

183 

25 

59 

188 

53 
123,  209 

218 
60 
60 

265 

254 

285,  287 

9.  194 

256,  257 

200,  213 

96,  112 

104 

[i,  12,  16 

60 

220 

183 

11 

199 

8,  40a,  60 

267 

215 

12 
1S2 

"37 

182 

68  73 

65 

150 


1  1 


TABLE   OF   CASES. 


Bah.  &  O.  R.  R.  Co.  v.  Strauss            61 
v.  Trimble  223 
Baltimore  Turnpike  Co.  v.  Barnes     151 
Bambrick  v.  Bambrick  193,  199 
Bamfield  v.  Tupper  68 
Bancroft  v.  Andrews  60 
Bangs  v.  Hall  68,  69,  70,  71,  73 
Bank  v.  Beverly  200 
v.  Carpenter  60 
v.  Carrington  201 
v.  Dalton  252 
v.  Daniel  58 
v.  Dutton  11 
v.  Hammond  146 
v.  Smyers  259,  260 
v.  Waterman  276 
Bankhead  v.  Owen  560 
Banks  v.  Coyle  119 
v.  Judah  61 
Bannegan  v.  Murphy  34 
Bannon  v.  I.loyd  7 
Barber  v.  Babel  230 
v.  Barber  275 
v.  Robinson  258 
v.  Wheeling  F.  <&  M.  Ins.  Co.       50 
Barber  Surgeons  of  London  v.  Pel- 
son  19 
Barclay's  Appeal  96 
Barclay  v.  Blackinton  199 
v.  Goodloe  259 
v.  Owen  1,  229 
v.  Talman  mo 
Barcroft  v.  Murphy  259 
Barger  v.  Durvin  101 
v.  Hobbs  259 
v.  Miller  259 
Barke^ew  v.  Taylor  236 
Barker,  In  te  200 
v.  Green  178 
v.  Martin  35 
v.  Millard  243 
v.  Miller  6 
v.  Richardson  182 
v.  Strafford  Co.  Savings  Bank     141 
Barley  v.  Jackson  172 
Barlow  v.  Bellamy  64,  69,  71 
v.  Whitelock  219 
Barnard  v.  Bartholomew  68,  72 
v.  Edward  273 
v.  Jewett  201,  220 


Barnes  v.  Glendon 

v.  Vickers 
Barnesly  v.  Powel 
Barnet  v.  Dougherty 
Barney  v.  Oelrichs 

v.  Patterson 

7/.  Smith 

v.  Sutton 
Barnitz  v.  Beverly 
Barnsback  v.  Reiner 
Barnum  v.  Landon 
Barnwall  v.  Smith 
Barr  v.  Gratz 

v.  Potter 
Barrett  v.  Coburn 


SECT. 

3,  16,  35 
271 

5& 
201 

245,  247 

30 

65,  So 

259 
11 

145 
24 
1S8 
261 
269 
266 


Barrington  v.  Pitts.  &c.  R.  R.  Co.       20 

Barron  v.  Barron  201 

v.  Kennedy  96,  97,  104,  105 

v.  Martin  222,  225,  235 

Barsalou  v.  Wright  188 

Bartholomew  v.  Candee  173 

v.  Edwards  256 

Bartletl  v.  Judd  219 

v.  Mystic  River  Corp.  120 

v.  New  York  247 

v.  Simmons  267 

Bartol  v.  Calvert  55 

Barton  v.  Tattersall  199 

Barwick  v.  Thompson  265 

Barwick's  Case  54 

Baschleben  v.  People  13 

Bash  v.  Bash  120 

Baskin  v.  Seechrist  265 

Baskins  v.  Wilson  290 

Basnight  v.  Meekins  258 

Bass  v.  Bass  172,  199,  277,  279 

v.  Smith  65 

Bassand  v.  White  276 

Bassett  v.  Bassett  185,  247 

v.  Hotel  Co.  149 

v.  Sanborn  20 

v.  Salisbury  Mfg.  Co.  61 

Batchelder  v.  Batchelder  78 

Bateman  v.  Allen  256 

v.  Boulton  99 

v.  Pinder  68,  89,  97,  104 

Bates  v.  Bates  73,  77,  78 

v.  Conrow  222,  229 

v.  Cullum  11,  245 

v.  Curtis  20 


XXII 


STATUTES    OF   LIMITATION. 


SECT. 

Bates  v.  Gillett  58 

v.  Norcross  258 

Bath  v.  Freeport  19 

Bathgate  v.  Haskin  121 

Baton  v.  Mclntire  230 

Batson   v.  Murrell  188 

Battle  v.  Shivers  1 

Bitlles  v.  Fobes  11 
B-tttley  v.  Faulkner     122,  140,  155,  178, 

179 

Baabien  v.  Beaubien  200 

Baucurri  v.  Streater  153 

Bauman  v.  Grubbs  237,  240 

Baamgartner  v.  Guessfeld  201 

Bauserman  v.  Blunt  6,  8,  40^7 

Bausman  v.  Kelly  61 

Baxendale  v.  Murray  182 

Baxter  v.  Deas  236 

v.  Gay  141,  153 

v.  Hozier  24 

v.  Penr.iman   64,  66,  68,  70,  71,  190 

v.  State  52 

Bayard  v.  McLane  25 

Bayles  v.  3axter  201 

Bayley  v.  Ashton  94,  98,  105,  111 

Bayliss  v.  Street  68 

Baylor  v.  Digarnette  200 

Bayntun  v.  Walton  54 

Beadle  v.  Hunter  183 

Beal  v.  Nason  11 

Beale  v.  Edmondson  64 

v.  Nind  66,  68,  70 

Bealey  v.  Shaw  182 

Bealy  v.  Greenslade  104,  105,  176 

Bean  v.  Brown  no 

v.  Tonnele  1,  2,  21,  60 

v.  Wheatley  77 

Beard  v.  Presbyterian  Church  188 

v.  Ryan  269 

Beardmore  v.  Gregory  195 

B  :ardsley  v.  Hall  8r,  105,  287 

Beasley  v.  Evans  70,  71 

Bealty  ~'.  Burnes  16 

v.  Clement  J 15 

Ly<  '/tiling  Ins.  Co.  42 

v.  Mason  258 

v.  Van  Ness  7 

Be  liy  V.  Atlantic  k  W.  P.  R.  Co.      294 

B  aubien  v.  Beaubien  215 

Beau'  hamji  v.  Mudd  6,  194 


SECT. 

Beaumont  v.  Reeve  200 

Beaupland  v.  McKeen  261,  267 

Beck  v.  Beck  73 

v.  Haas  no 

v.  Pierce  79 

Becker  v.  Van  Valkenburgh  255 

Beckett  v.  Bradley  265 

Beckford  v.  Close  58 
v.  Wade         10,  58,  60,  222,  225,  252 

Beckley  v.  Howard  183 

Beckman  v.  Davidson  257 

?/.  Satterlee  289,  290 

Beckion  v.  Alexander  6,  240 

Beckwith  v.  Angell  8 

v.  Sibley  22 

Bedell  v.  Shaw  260 

Bedford  v.  Brady  58 

Beebe  v.  Dudley  146 

Beecher  v.  Baldwin  281 

Beeching  v.  Morphew  188 

Beedy  v.  Dine  267 

Beekman  v.  Richardson  6,  199 

Beeler  v.  Clarke  77 

Beer  v.  Beer  24 

Beers  v.  Reynolds  280 

Beesley  v.  Spencer  n 

Belch  v.  Harvey  222 

Belchertown  v.  Bridgman  278 

Belden  v.  Barker  294 

Belknap  v.  Bendor  200 
v.  Gleason     21,  58,  65,  77,  212,  222, 

232 

Bell,  In  re  209 

Bell's  Estate  79 

Bell  v.  Crawford  68,  72,  101 

v.  Denson  258,  270 

v.  Hanks  6 

v.  Hartley  258,  270 

v.  Hudson  59 

v.  Johnson  200 

v.  Lamprey  247 

v.  Levers  200 

v.  Longworth  259,  267 

v.  McCawley  259 

v.  Morrison     1,4,68,69,77,78,285, 

287 

v.  Pierce  245,  247 

v.  Radcliff  no 

v.  Rowland  68,  69,  71 

v.  Whitehead  257 


TABLE   OF   CASES. 


XXlll 


SF.CT. 

Bell  v.  Yates  129 

Bellamy  v.  Sabine  275 

Bellasis  v.  Hester  54 

Bellefontaine   Impr.   Co.   v.    Nied- 

ringhaus  259 

Belles  v.  Belles  68,  69,  71,  277,  278 

Bellis  v.  Bellis  259,  261 

Belleville  Sav.  Bank  v.  Winslow  7 

Bellows  Falls  Bank  v.  Rutland  Co. 

Bank  142 

Belmont  v.  O'Brien  173,  222 

Belote  v.  Wynne  285,  287 

Belton's  Estate,  In  re  32 

Beltzhoover  v.  Yewell      11,97,  115,  277 


Belvidere  v.  Warren  R.  Co. 

11 

Bemis  v.  Bemis 

188 

v.  Leonard 

54 

Benjamin  v.  Eldridge 

11 

Bennett  v.  Baird 

68 

v.  Buchanan 

145 

v.  Clemence 

266 

v.  Cook 

145,  247 

v.  Davis 

278 

v.  Dawson 

188 

v.  McCanse 

171 

v.  Union  Bank 

236 

v.  Waller 

173 

Bennington  v.  Dinsmore 

294 

Benny  v.  Rhodes 

no 

Benson  v.  Mayor 

n 

v.  Stewart 

229,  271 

Bent  v.  Thompson 

237 

Bentley's  Appeal 

1 

Benton  v.  Bailey 

221 

v.  Fletcher 

146 

v.  Holland 

101 

Bentwick  v.  Franklin 

II 

Berens  v.  Boutte 

79 

Berghaus  v.  Calhoun    64,  68, 

^9.  70,  93 

Bergman  v.  Bly 

171 

Berkson  v.  Cox 

101 

Berly  ^.Taylor 

21 

Bernard  v.  Bougard 

201 

Bernstein  v.  Hicks 

70 

Berrian  v.  New  York 

97 

v.  Conover 

273 

Berrien  v.  Wright 

6 

Berrington  v.  Parkhurst 

259 

Berry  v.  Brown 

200 

v.  Doremus 

141 

Berthold  v.  Fox 
Bertine  v.  Varian 
Bertrand    v.  Byrd 
Bescher  v.  Paulus 
Best  v.  Campbell 
Bethel,  In  re 
Bethune  v.  Dougherty 
Beijemann  v.  Betjemann 
Bettison  v.  Budd 
Bettman  v.  Cowley 
Betton  v.  Cutts 
Betts  v.  Brown 

v.  Norris 
Bevan  v.  Cullen 

v.  Gething 
Beverly  v.  Burke 
Bibb  v.  Peyton 
Bickford  v.  Wade 
Bickle  v.  Chrisman 
Bicknell  v.  Gough 
Biddel  v,  Brizzolara 
Biddle  v.  Moore 

v.  Wendell 
Bidwell  v.  Astor  Mut.  Ins.  Co. 

v.  Rogers 
Bierne  v.  Mower 
Bigelow  v.  Ames 

v.  Bemis 

v.  Catlin 

v.  Jones 

v.  Lib  by 

v.  Los  Angelos 

v.  Norris 

v.  Whitney 

v.  Willson 
Bigger  v.  Hutchings 
Biggs    v.    Lexington,    &c.    R.     R. 

Co.  117 

Bihin  v.  Bihin  6 

Bill  v.  Lake  119,  120 

Billings  v.  Hall  1,  11 

Billon  v.  Larimore  6.  251 

Bingham  v.  Thompson  236 

v.  Weiderwax  173 

Binney's  Appeal  155 

Binns  7/.  Nichols  189 

Bird  v.  Davis  no 

v.  Gammon  68,  89 

v.   Keller  222 

Birk  v.  Guy  85 


SECT. 
266 
24,  200 

25 
276 
200 

73 
200 

275 

265 

11 

77 
256,  263 

154,  178 

7,  279 

98,  176 

270 

287 

238 

6 

153 

68,  235 

41,  1S8 

162 

53 

77 

295 

8 

n 

200 

266 

126 

61 

21 

109 

54 

188 


XXIV 


STATUTES   OF   LIMITATION. 


Birmingham  v.  Ches.  &  Ohio  Ry. 

Co.  179 

Birnie  v.  Main  223 

Bisbee  v.  Evans  40a 

Biscoc  v.  Jenkins  287 

v.  Sandefur  188 

v.  Stone  96,  104 

Bishop  v.  Bishop  236 

v.  Jones  6 

v.  Little  153 

v.  Sanford  3° 

v.  Settle  58 

v.  Young  125 

Bissell  v.  Adams  101 

v.  Hall  8,  16 

v.  Jaudon  31,  75 

Bissing  v.  Smith  261 

Bizzell  v.  Nix  223,  232 

Black  v.  Elliott  194 

v.  Johns  54 

v.  Payne  221 

v.  Piatt  Co.  2 

v.  Reybold  68,  71,  S6 

v.  Schouler  no 

v.  Swan  son  n 

v.  Winneshiek  Ins.  Co.  49,  276 

Blackburn  v.  Mann  159 

v.  Morton  8,  10 

Biackney  v.  Ferguson  265 

Blackford  v.  Peltier  n 

Blackman  v.  Nearing  54 

Blackwell  v.  Blackwell  213 

v.  Bragg  6 

v.  England  245 

Blackwood  v.  Van  Vliet  256 

Blain  v.  Blain  290 

Blair  v.  Bass  236 

v.  Bromley  178 

v.  Drew  277.  279 

v.  I-ynch  98 

v.  Onnond  119,  175,  J7° 

v.  Williams  n 

Blaisdell  v.  School  District  142 

Blake  v.  Crowningshield  54 

v.  Foster  222,  225,  235 

v.  Nelson  58 

V.  I'arleman  68 

v.  Sawyer  no 

Blakeley  v.  Hestor  256 

Blakeman  v.  Fonda  69,  77 


Blakemore  v.  Byrnside 
Blakeway  v.  Strafford 
Blalock  v.  Phillips 
Blanchard  v.  Brooks 

v.  Hilliard 
Bland  v.  Haselrig 
Blaney  v.  Bearce 
Blatchford  v.  Plymouth 
Blethen  v.  Dewnal 

v.  Lovering 
Blight  v.  Rochester 
Bliss  v.  Allard 

v.  Hall 

v.  Seaman 
Blodsoe  v.  Doe 
Blood  v.  Wood 
Bloodgood  v.  Bruen 
Bloom  v.  Kern 
Blount  v.  Robeson 
Bloxam  v.  Walker 
Blud  worth  v.  Lake 


SECT. 

236 

205 

21 

221 

54 

65,  285,  287 

221 

173 

175.  225 

140,  144a 

203 

70,  72 

181 

199 

52 

267 

68,  71,  79,  205 

65,  68,  88 

200 

173 

221 


Blue  Hill  Academy  v.  Ellis  79 

Blunden  v.  Baugh  256 

Blunt  v.  Heslop  54 

Blydenburgh  v.  Cotheal  173 

Boardman  v.  House  245,  24S 

Board  of  Education  v.  Blodgett  11 

Boatwright  v.  Boatwright  194.  195 

Bobe  v.  Stickney  no 

Bobo  v.  Norton  31 

Bodfish  v.  Bodfish  182 

Bodger  v.  Arch,  112,  113 

Bodley  v.   Cogshill  263 

v.  Ferguson  219- 

Bogardus  v.  Trinity  Church  259 

v.  Wellington  I44<* 

Bogert  v.  Vermilya  246 

Boggs  v.  Bard  7 

v.  Hargrave  221 

v.  Johnson  211 

Bohannon  v.  Chapman  183,  245. 
Bolivar  Mfg.  Co.  v.  Neponset  Mfg. 

Co.  iSr 

Boiling  v.  Petersburg  258- 

Bollinger  v.  Chouteau  224,  225 

Bolton  v.  Hamilton  266 

Boltz  v.  Bullman  172 

Bomeisler  v.  Dobscn  25 

Bonaffe  v.  Woodbury  no 
Bond   v.  Hopkins         58,  59,  60,  63,  359, 


TABLE   OF   CASES. 


XXV 


SECT. 

Bond  v.  Jay 

279 

v.  Lathrop 

285 

v.  O'Gara 

256 

v.  Smith 

188 

Bones's  Appeal 

19 

Bonesieel  v.  Van  Etlen 

I20 

Bonner  v.  Young 

212 

Bonham  v.  Newcomb 

227 

Bonney  v.  Ridgard 

275 

v.  Seely 

145 

v.  Sloughton 

6 

Bonomi  v.  Backhouse 

173. 

178 

180 

Boody  v.  Lunt 

139 

Booker  v.  Gregory 

118 

Boomer  v.  French 

252, 

276 

Boone  v.  Chiles             200, 

212, 

215, 

219 

v.  Colehour 

59 

v.  Miller 

60 

v.  Pierpont 

229 

Boone  County  v.  Burlingtor.  &  Mo. 

River  R.  Co.  53 

Booth  v.  Adams  266 

v.  Powers  177 

v.  Small  267 

v.  Warrington  58 

Boothby  v.  Hathaway  173 

Borden  v.  Peay  58,  100 

Bordens  v.  Murphy  7 

Bordly  v.  Clayton  273 

Borel  v.  Rollins  269 

Borer  v.  Chapman  289 

Borrets  v.  Turner  259 

Borrows  v.  Ellison  251 

Borst  v.  Corey  19,  21,  58,  65,  232 

Bosley  v.  Nat.  Machine  Co.         274,  276 

v.  Porter  no 

Boss  v.  Hershman  70 

Bossard  v.  White  214 

Bostwick  v.  Dickson  212 

Boteler  v.  Allington  200 

Botsford  v.  Burr  201 

Botts  v.  Shield  260 

Boughn  v.  State  28 

Boughton  v.  Flint  60 

v.  Van  Valkenburgh  223 

Boulware  r.  Robinson  145 

Bound  v.  Lathrop  77 

v.  Sharp  256 

Bourdin  p.  Greenwood  131 

Bourlon  v.  Waggaman  58 


SECT. 

Bourne  v.  Hall  200 

Bouton  v.  Dry  Dock  Stage  Co.  150 

Bowden,  In  re  58,  276 

Bowdish  v.  Dubuque  265 

Bowdre  v.  Hampton  68,  81 

Bowen  v.  Bell  20 

v.  Brogan  259 

v.  Guild  257,  270 

v.  Miller  81 

Bower  v.  Hill  182 

Bowes  v.  East  London  Waterworks  184 

Bowie  v.  Brahe  258,  259 

v.  Poor  School  Soc.  150 

Bowker  v.  Harris  68,  73 

Bowles  v.  Elmore  119 

v.  Woodson  153 

Bowman  v.  Bartlett  259,  263 

v.  Cockrill  256 

v.  Curd  146 

v.  Downer  72 

v.  Hoffman  183 

v.  McChesney  124 

v.  Rector  86 

v.  Wathen    58,  59,  60,  200,  212,  213 

v.  Wood  54 

v.  Wright  145 

Bowyer  v.  Clarke  180 

Boxley  v.  Gayle  68 

Boyce  v.  Dudley  251 

v.  Foote  190 

v.  Snow  294 

Boyd  v.  Barrenger  n 

v.  Beck  221,  229 

v.  Blankman  273 

v.  Clark  9,  194 

v.  Grant  68,  70 

v.  Harris  173 

v.  Hurlburt  68,  69 

Boydell  v.  Drummond  85 

Boyden  v.  Cape  Fear  Bank  142 

Boyle  v.  Henemuth  6S 

v.  Zachary  275 

Boynton  v.  Hodgdon  258 

v.  Moulton  72,  77 

Boyreau  v.  Campbell  259 

Bozeman  v.  Browning  6,  251 

Bracken  v.  Martin  258 

v.  Miller  20S 

Brackett  v.  Mountfort  68,  70,  73 

Bracon  v.  Bracon  10 


XXVI 


STATUTES   OF   LIMITATION. 


Bradbury  v.  Grinsell 
Bradfield  v.  Tupper 
Bradford  v.  Andrews 

v.  Brooks 

v.  Guthrie 

v.  McCormick 

v.  Reed 

v.  Shine 
Bradley  v.  Cole 

v.  Field 

v.  James 

v.  Norris 


SECT. 

182 

105 

294 

12 

270 

252 

97 

6,  11 

8,  40« 

68,  70 

105,  115 

188 


Bradley  FertilizerCo.  v.  South  Pub. 

Co.  2S0 

Bradley's  Fish  Co.  v.  Dudley  181 

Bradner  v.  Strong  97 

Bradshavv's  Case  173 

Bradstreet  v.  Clarke  6,  251 

v.  Huntington  4,  258,  259 

Bradt  v.  Church  265 

Brady  v.  Calhoun  277 

v.  Daly  4°<7 

v.  Mayor  20 

v.  Prudential  Ins.  Co.  42 

v.  Walters  208,  238 

r.  Western  Ass.  Co.  49 

Brahm  v.  Adkins  142 

Brailsford  v.  James  68,  73 

Brainard  v.  Buck  68 

v.  Bushnell  54 

Braithwaite  v.  Harvey  6S 

Branch  v.  Doane  182 

Brand  v.  Longstreet  766 

Brandon  v.  Brandon  227 

Brandram  v.  Wharton  285 

Brandt  v.  Ogden  256,  25S,  260 

Bratton  v.  Guy  11 

Braun  v.  Sauerwein  6 

Brayden     p.    New    York,  &c.     R. 

Co.  296 

Brayton   v.  Rockwell  68,  72 

Breckenridge  v.  Churchill  58 

Bree  v.  Holbech    119,  140,  153, 178,  221, 

274 

Breed  v.  Hillhouse  146 

love    v.  Martinsville,    &c.    R. 

R.  Co.  150 

Brehm  v.  Mayor  243 

1    r  -     P>it,'elow  265 

Brcneman's  Appeal  2 


Brennan  v.  Ford 
Brent  v.  Chapman 

v.  Cook 
Brettlebank  v.  Goodwin 
Brew  v.  Brew 
Brewer  v.  Harris 

v.  Kelly 
Brewster  v.  Brewster 

v.  Hardeman 

v.  Hobart 
Brian  v.  Tims 
Brice  v.  Hamilton 
Bricker  v.  Lightner 
Brickett  v.  Davis 

v.  Spofford 
Bridge  v.  Gray 
Bridgam  v.  Hoffmaster 
Bridges  v.  Blake 

v.  Stephens 

v.  Supervisors 
Bridgeton  v.  Jones 
Bridgforth  v.  Payne 
Bridgman  v.  Gill 

v.  Green 
Brien  v.  Sargent 


SECT. 

58,     144 

IO 

141 

218 

IOI 

55 

276 

190 

68,  285,  287 

118 

30 

no 

274,  276 

7 
270 

385 

270 

7i 

76 

343 

97,  104 

7 

18,  200,  275 

275 
259 


Briggs  v.  Boston  &  Lowell  R.  Co.       22 

v.  Fish  221 

v.  Prosser  260 

v.  Thomas  194 

v.  Wilson  115,  188,  191,  197 

v.  Williams  no 

Brigham  v.  Bigelow  11 

v.  Eveleth  20 

v.  Hutchins  73 

Brigham,  Petitioner  59 

Bright  v.  Legerton  6o,  200,  212 

v.  Walker  82 

Brigstocke  v.  Smith  69,  85 

Brimmer   v.    Proprietors   of   Long 

Wharf  261 

Brinckerhoff  v.  Bostwick  149 

Bringloe  v.  Goodson  265 

Brinkman   v.  Jones  264 

Hrinsfield  v.  Carter  52 

Brinsmaid  v.  Mayo  24 

Brintnall  v.  Rice  72 

Brinton  v.  Hutchinson  218 

Briscoe  v.  Anketell  II,  287 

Brisendine  v.  Martin  145 

Bristol  v.  Carroll  County  257 


TABLE   OF   CASES. 


XXV11 


SECT. 

SECT. 

Bristow  v.  Miller 

211 

E 

rown  v.  Hancock 

7 

British    Bank    v.   Merchants' 

Nat. 

V 

Hartford  Ins. 

Co. 

42 

Bank 

17 

"7 

I40 

V 

Hiatt 

6 

British  Linen  Co.  v.  Drummo 

nd 

8,  10 

V 

Hopkins 

30 

Britt  •>    Pitts 

183 

V 

Houdlette 

35 

175 

Britilebank  v.  Goodwin 

199 

V 

Howard 

178, 

179 

183 

274 

Britton  v.  Lewis 

212 

V 

Hutchings 

"5 

Broadhurst  v.  Balgany 

214 

V 

Jarvis 

178 

Broadway  Nat.  Bank  v.  Bakei 

60 

I4y 

V. 

Johnson 

no 

Brobsl  v.  Brock 

229 

V. 

Jones 

27 

Brock  v.  Savage 

1-2 

V. 

Reach 

77 

Brocking  v.  Cham 

173 

V. 

Keller 

265 

Brocklehurst  v.  Jessop 

16 

V. 

King 

256, 

259 

260 

Broddie  v.  Johnson 

68 

V. 

Latham 

97, 

101 

112 

Broiestedt  v.  South  Side  R.  R 

Co. 

60 

V. 

McCoy 

266 

Brolaskey  v.  McClain 

269 

V. 

McElroy 

142 

Bromwell  v.  Buckman 

68 

V. 

McKinney 

259 

Bronson  v.  Kinzie 

11 

V. 

Marion  Nat.  Bank 

168 

Brooke  v.  White 

137" 

V. 

Merrick 

6 

194 

Brookes  v.  Chesley 

68 

V. 

Parker 

8 

243 

v.  Humphreys 

173 

V. 

Pike 

117 

Brooks  v.  Bruyn 

259. 

267 

V. 

Porter 

259 

v.  Clay 

257 

V. 

Quilter 

173 

v.  Curtis 

182 

V. 

Radford 

62 

v.  Lynde 

35, 

199 

V. 

Ralston 

25 

v.  Riding 

258 

V. 

Rutherford 

59- 

105, 

118, 

125 

Brooksbank  v.  Smith 

199. 

274 

V. 

Savannah  Ins 

Co. 

42 

Broome  v.  Alston 

24 

V. 

Sims 

179 

Broomhead,  Re 

16 

V. 

State  Bank 

68.  76 

Brougham  v.  Poulett 

199. 

205 

V. 

Tyler 

119 

Brown's  Estate 

199 

V. 

Vandyke 

280 

Brown  v.  Agnew 

171 

V. 

Walker 

6 

v.  Anderson 

68 

V. 

Watkins 

25S 

v.  Bridges 

7i 

,  79 

V. 

Wilcox 

ir 

v.  Brown           io,  118, 

194. 

201, 

276 

V. 

Wilson 

59 

v.  Buena  Vista 

275 

B 

rowr 

Co.  v.  Wynona 

20 

v.  Buzan 

54 

B 

rowne  v.  Browne 

54, 

222, 

223 

v.  Campbell 

68 

B 

rovvning  v.  Paris 

190 

v.  Claxton 

199 

B 

roxton  v.  Wood 

90 

v.  Cloud  County  Bank 

21 

B 

rubaker  v.  Taylor 

172 

v.  Cockerell 

256. 

263, 

267 

R 

ruce 

v.  Luck 

8 

v.  Cousens 

240 

v. 

Robson 

"5 

v.  Curtis? 

146 

v. 

Roney 

201 

v.  Delafisld 

246 

V. 

Tilson 

318, 

319 

v.  Dysenger 

265 

V. 

Wood 

259 

v.  Edes 

76, 

276 

B 

ruen 

v.  Hone 

58, 

280 

v.  Gauss 

35 

B 

rumagim  v.  Bradsh 

aw 

257 

v.  Gay 

256, 

263 

v. 

Tallant 

Il8, 

142 

v.  Goolsby 

294 

B 

rundage  v.  Port  Ch 

ester 

120 

v.  Griffiths 

6S 

B 

runson  v.  Ballou 

?J2 

XXV1U 


STATUTES   OF   LIMITATION. 


Brunswick  Terminal   Co.  v.  Balti- 
more Nat.  Bank  I,  II,  149 
Brush  v.  Manhattan  R.  R.  Co.  60 
Brust  v.  Barrett  16,  140 
Bruyn  v.  Comstock  16 
Bryan  v.  Atwater  256,  260 
v.  Board  Education  60 
v.  Butts  221 
v.  Covvart  236 
v.  Horseman                  65,  68,  71,  85 
v.  Kales  60 
v.  Ware  68 
v.  Winwood  265 
Bryant  v.  Crosby  236 
v.  Puckett  200 
v.  Swetland  276 
Bryar  v.  Willcocks  79 
Bryne  v.  Beeson  265 
v.  Lowry  269 
Buccleuch  v.  Eden  72 
Buchan  v.  James                    123,  200,  215 
Buchanan  v.  Biggs  30 
v.  Buchanan  190 
v.  Munroe  221 
v.  Parker  123 
v.  Whitman  54 
Buchanan  Co.  v.  Woodman  142 
Buck  v.  Cooper  222 
v.  Spofford  171 
v.  Swazey  201 
Buckey  v.  Culler  202 
Buckingham  v.  Ludlam  200 
v.  Smith  64,  68,  109 
Buckley  v.  Daly  221 
v.  Williams  173 
Bucklin  v.  Chaplin  69 
v.  Ford                     117,   140,  194,  252 
Buckmaster  v.  Needham  266 
v.  Russell  68,  73,  77 
Buckner  v.  Calcote  276 
v.  Patterson  142 
v.  Street  223 
Budd  v.  Walker  7.  Il9 
Buell  v.  Cole  24 
Bufferlow  n.  Newsom  265 
ingtoa  v.  Chase  99,  101 
Davis  69 
Buffum  v.  Dcane  32 
Buie  v.  Huie  2 
1  7 .  Roche  8 


Bulkley.z>.  United  States 
Bull  v.  Towson 
Bullard's  Estate 
Bullard  v.  Bell 
Bullen  v.  Arnold 


SECT. 

11S 

19 
194 

38 
271 


Bulli  Coal  Mining  Co.  v.  Osborne  275 
Bullion  and  Ex.  B'k  v.  Hegler  1,  68,  77 

Bulloch  v.  Smith  60,  68 

Bullock  v.  Campbell  133,  136,  145,  171 

v.  Dean  296 

v.  Dowries  40,  205 

v.  Perry  64 

Bunce  v.  Bidwell  263 

v.  Bunce  145 

v.  Wolcott  6,  235,  240,  251 

Bunder  v.  Snyder  172 

Bunker  v.  Athearn  190 

Bunt  v.  Ransom  238 

Buntin  v.  Lagow  277,  278 

Burd  v.  M'Gregor  34 

Burden  v.  Stein  59 

Burdick  v.  Garrick  18,  58,  194,  209 

v.  Green  289 

Burditt  v.  Grew  58 

Burdoin  v.  Shelton  58 

Burgess  v.  Gray  52 

v.  St.  Louis,  etc.,  R.  R.  Co.  58 

Burgood  v.  Bixler  105 

Burham  v.  James  200 

Buike  v.  Jones  58,  68,  199,  205 

v.  Length  219 

v.  Lynch  226 

Burkhalter  v.  Edwards  259 

Burkhead  v.  Coulson  60 

Burkitt  v.  Blanshard  97 

Burleigh  v.  Lumbert  180 

v.  Stott  145 

Burn  v.  Boulton  98,  101,  106,  no 

Burnet  v.  Bryan  194 

Burnett  v.  Rich  265 

v.  Snider  288 

Burnham  v.  Brown  126,  151 

v.  Stevens  6 

Hums  v.  Pillsbury  209 

v.  Swift  257,  261 

Burr  v.  Burr  96,  97,  no 

v.  Lewis  54 

v.  Williams  100,  104 

Burrell  v.  Egremont  203 

v.  Scott  182 


TABLE   OF   CASES. 


XXIX 


Burroughs  v.  Bloomer 

245 

SECT. 
247 

'  Burrowes  v.  Gore 

190 

Burrows  v.  Gallup 

270 

v.  M'Whann 

60 

Bur;  v.  Palmer 

79 

Barton  v.  Buckeye  Ins.  Co. 

47 

v.  Lockert 

119 

v.  Rutherford 

136 

145 

v.  Stevens 

76 

v.  Wharton 

68 

Busch  v.  Huston 

260 

Bush  v.  Barnard                   65, 

69.  73.  77 

v.  Bush 

141 

v.  Cooper 

v.  Stovvell        126,  151,  210,  285. 

234 

2S7 

Bushnell  v.  Bushnell 

60 

Bush  wood  v.  Bond 

182 

Buskin,  In  re 

72 

Buswell  v.  Roby 
Buicher  v.  Hixton 

190 

115 

Butler  v.  Carter 

199 

v.  Howe 

6, 

251 

v.  Hyland 
v.  Johnson 
v.  Kirby 

212 

188 
120 

v.  Price 

IOI 

v.  Swinnerton 

173 

Butter  v.  Johnson 
Butterfield  v.  Forrester 

59 

178 

v.  Jacobs 
Buttrick  v.  Allen 

68,  7: 

.  77 
20 

Butts  v.  Perkins 

IOI, 

112 

Buxton  v.  Edwards 

211 

Byars  1..  Thompson 
Byers  v.  Bostwick 

212 
20,  25 

Bynum  v.  Carter 

267 

v.  Thompson 
Byrchall  v.  Bradford 
Byrd  v.  Byrd 

v.  Stewart 

194, 

5*59 

205 

251 
163 

v.  Wells 

188 

Byrne  v.  Beeson 
v.  Lowry 

c. 

265 
267 

Cadiz  Bank  v.  Slemmons 

16 

Cadman  v.  Rogers 

125 

Cadmus  v.  Dumon 

65 

,  70 

Cadwallader's  Appeal 
Cadwallader  v.  App 

60 
270 

■Cady  v.  Huntington 

178 

Cady  v.  Shepherd 

Caesar  v.  Bradford 

Cage  v.  Foster 

Cain  7/.  Gimon 

Cairo,  &c.  R.  Co.  v.  Parks 

v.  Woolsey 
Calder  v.  Bull 
Caldwell  v.  Black 

v.  Miles 

v.  Powell 

v.  Roberts 

v.  Rodman 

v.  Thorp 
Calhoun's  Appeal 
Calhoun  v.  Cook 

v.  Millard 
California  Ins.  Co.  v.  Gracey 
Calk  v.  Lynn 
Calkins  v.  Calkins 

v.  Isbell 
Calks  v.  Weeks 
Call  v.  Hagger 
Callahan  v.  Boazman 
Callander  v.  Howard 
Callard  v.  Tuttle 
Callaway  v.  Saunders 
Callaway  County  v.  Nolley 
Callendar  v.  Sherman 
Callender  v.  Colegrove 
Callis  v.  Waddy 
Calvert  v.  Carter 

v.  Lowell 

v.  Sebright 
Camberling  v.  M'Call 
Cambridge  v.  Hobart 
Cameron  v.  Cameron 

v.  Smith 

v.  Wurtz 
Camp,  Re 

v.  Camp 

v.  Pulver 
Campau  v.  Dubois 
Campbell  v.  Baker 

v.  Baldwin 

v.  Boggs  18 

v.  Brown 

v.  Clark 

v.  Crater 

v.  Calhoun 

v.  Campbell 


SECT. 
285 
154 
145 
265 
lf)0 

259 

II 

240 

59 
281 

145 
118,  124 

251 

60 

266 

60,  61 

42 

261 

11 

225 

64 

11 

no 

176,  280 

58.  118 

42 

n 

265 

276 

275,  296 

no 

n,  12 

173 

44 

68,  70,  73 

7 

240 

30 

212 

265 

21 

256 

146 

99,  101 

122,  123 

88,  145 

211 

"7 

171 

145 


XXX 


STATUTES   OF   LIMITATION. 


Campbell  v.  Culver 

289 

v. 

Graham 

62,  199 

v. 

Haverhill 

II,  40a 

v. 

Holt 

II,  65 

v. 

Laclede  Gas  Co. 

6,  258 

v. 

Lewis 

173 

v. 

Long 

214,  252,  276 

v. 

Maple 

200 

v. 

Seaman 

181 

v. 

Shoatwell 

1S8 

V. 

Stein 

S 

V. 

Sullivan 

6S 

V. 

Vining 

274 

V. 

White 

247 

V. 

Whoriskey 

118,  125,  200 

z/. 

Worthington 

236 

Camy 

v.  Higdon 

259 

Canada  So.  R.  Co.  v.  Gebhard  150 

Canby  v.  Ingersol  20 

Cann  v.  Cann  120 

Cannon  v.  Lynch  40 
Canton  Female  Acad.  v.  Gilman,  65,  68 

Cape  Fear  Nav.  Co.  v.  Costen  119 

v.  Wilcox  119 
Gape  Girardeau  County  v.  Harbison 

79,  223,  235 

Capehart  v.  Seaboard,  &c.  R.  R.  Co.    51 

Capen  v.  Woodrow  7 

Caple  v.  McCollum  201 

Caplinger  v.  Stokes  163 

Capper  v.  Dickinson  22 

Cargill  v.  Harrison  10 

Carithers  v.  Weaver  265 

Carlisle  v.  Morris  in 

v.  Stitler  251 

Carll  v.  Hart  66,  104 

Carlton  v.  Ludlow  Woollen  Mill  81 

Carlyon  v.  Lannan  236 

Carney  v.  Havens  120 

v.  Hennessey  237 

Carnley  v.  Stanfield  265 

Carpenter  v.  Bowen  221 

v.  Minturn  8 

t.  Schermcrhorn  240 

v.  State  68 

v.  Thompson  265 

v.  Wells  8 

Cair  7 .  C  irr  17,  18 

V.  Chapman  199 

v.  Dings  2 


SECT. 

Carr  v.  Dooley  173 

v.  Foster  182 

v.  Robinson  70,  81 

Carrier  v.  Chic,  &c.  R.  R.  Co.  252,  274 

Catritt  v.  Real  and  Per.  Ad.  Co.         218 

Carrol  v.  Gillion  258 

Carroll  v.  Carroll  205 

v.  Forsyth  77,  79 

v.  Ridgaway  70,  73 

Carruth  v.  Paige  77 

Carshore  v.  Huyck  66,  104,  105 

Carson  v.  Allen  25 

v.  Hunter  8 

Carter  v.  Bennett  200 

v.  Cantrell  240,  251 

v.  Denman  173 

v.  Eighlh  Ward  Bank  276 

v.  Fischer  280 

v.  Hope  20 

v.  Hornback  258 

v.  Humboldt  Ins.  Co.  421 

v.  Taylor  221 

v.  Trice  59 

Cartier  v.  Page  8 

Cartwright  v.  Cartwright  35,  41,  199 

Caruthers  v.  Humphrey  221 

v.  Trustees  of  Lexington  &o 

Carver  v.  Hayes  20 

Cary  v.  Edmunds  270 

v.  Hills  194 

v.  Stephenson  6,  190,  194 

v.  Whitney  52 

Casborne  v.  Scarfe  221 

Cascade  F.  &  M.  Ins.  Co.  v.  Journal 

Pub.  Co.  42,  51 

Case  v.  Cushman  68,  81 

v.  Keller  273 

Casey  v.  Gregory  265 

Casper  v.  Smith  182 

Cass  v.  McDonald  no- 

Castle  v.  Burditt  55 

Castleton  v.  Fanshaw  188 

Caston  v.  Caston  271 

Caiesby'f  Case  55 

Cathcart  v.  Bowman  173,  174 
Catholic  Bishop  of  Chic.  v.  Bauer     141 

Cutlin  v.  Chittenden  236 

v.  Delano                       ■  260 

Catling  v.  Skoulding      68,  277,  279,  280 

Cato  v.  Gill  25 


TABLE   OF   CASES. 


XXXl 


SECT. 

Cauch  v.  McKee  n 

Causler  z.  Wharton  211 

Causten  v.  Burke  25 

Cave  v.  Brookesby  173 

Cawer  v.  James  190 
Cawley  v.  Furnell                       72,  77,  87 

Cavvthorne  v.  Weisinger  188 

Cayuga  Bank  v.  Bennett  iqo 

Cecil  v.  Henderson  76 
Cedar  Lake  Hotel  Co.  v.  Cedar  Lake 

Hydraulic  Co.  180 

Central  Bank  v.  Solomon  12 

Chace  v.  Higgins  71 

Chadbourn  v.  Henderson  221 

Chadbourne  v.  Swan  271 

Chadwick  v.  Chadwick  212 

v.  Divol  24 

v.  Felt  201 

Chaffee  v.  Browne  77 

v.  Jones  145 

Chaires  v.  Brady  236 

Challefoux  v.  Ducharme  266 

Chamberlain  v.  Meeder  222,  234. 

Chamberlin  v.  Cuyler  277 

Chambers  v.  Chambers  7,  259 

v.  Fennemore  188,  190,  277 

v.  Garland  68,  97 

v.  Lewis  21 

v.  Marks  277 

v.  Pleak  266 

v.  Ruby  69,  78 

v.  Smith  188 

v.  Talladega  Real  Es.  Assoc.      294 

v.  Walker  11 

Champenois  v.  Fort  n° 

Champion  v.  Buckingham  21 

Chance  v.  Jennings  66 

Chancellor  v.  Wiggins  153 

Chandler  v.  Chandler  11 

v.  Hill  68 

v.  Lawrence  115 

v.  Rushing  269 

v.  Spear  262 

v.  Thompson  182 

v.  Vilett  16,  238,  241 

v.  Wesifall  1 

v.  White  276 

Chanudflower  v.  Prestley  173 

Chapin  v.  Freeland  254,  271 

v.  Warden  71 


SECT. 

Chapi 

n  v.  Wright 

71 

Chap] 

in  v.  Givens 

200 

Chapman's  Appeal 

68 

Chapman  v.  Aken 

1 

v. 

Barnes 

86 

v. 

Boyce 

104 

V. 

Butler 

V. 

Corpe 

235 

V. 

Dixon 

79 

V. 

Goodrich 

277 

V. 

Holmes 

173 

V. 

Kimball 

174 

V. 

Rochester 

60,  6t 

V, 

Schroeder 

273 

V. 

Templeton 

259,  267 

V. 

White 

142 

Chappelle  v.  Olney 

6 

Charity  v.  Riddle 

181 

Charl 

;s  v.  Scott 

35 

Charles  Riv.  B'dge  v.  Warren  B'dge  1 1 

Charter  v.  Trevelyan  275 

v.  Watson  6S 

Charter  Oak  L.  Ins.  Co.  v.  Gisborne  212 

Chase  v.  Alley  256 

v.  Alliance  Ins.  Co.  20 

v.  Cathright  235 

v.  Chase  59 

v.  Horton  Bank  149 

v.  Trafford  84,  280 

Chasemore  v.  Turner  77,  131 

Chattanooga  v.  Dowling  180 

Chauncey  v.  Rutter  291 

Cheek  v.  Anderson  60 

v.  Taylor  243 

Cheetham  v.  Lewis  289 

Cheever  v.  Perley  172,  173,  220,  230,  235 

v.  Railroad  Co.  238 

Chemical  Nat.  Bank  v.  Kissane         252 

Chemung  Canal  Bank  v.  Lowery         n 

Cheney  v.  Cooper  223 

v.  Janssen  223 

v.  Ringold  259 

Chenot  v.  Lefevre  245 

Cheriot  v.  Foussat  30 

Cherry  v.  Lamor  59,  149 

Cheseldine  v.  Brewer  259 

Cheslyn  v.  Dalby  68,  87 

Chester  v.  Wheelwright  no 

Chetham  v.  Hoare  275 

Chevallier  v.  Durst  6,  240 


XXX11 


STATUTES   OF   LIMITATION. 


SECT. 

SECT. 

Cheveley  v.  Bond 

6 

Clanricarde  v.  Henning 

275 

Chevrier  v.  Robert 

23 

Clapp  v.  Browagham 

260 

Chew  v.  Baker 

279 

v.  Hale 

8l 

Chic.  City  Ry.  Co.  v.  Hackendahl 

294 

Clapp  v.  Ingersol 

I05,    115 

Chicago  Marine  Bank  v.  Chandler 

142 

Clare  v.  Lockard 

289 

Chicago,  &c.  R.  Co.  v.  Jen 

kins 

6 

CI 

iridge  v.  Mackenzie 

265 

Chicago  &  Alton  R.  Co.  v. 

Keegan 

269 

Clark  v.  Alexander 

94,  280 

Chicago  Gen.  Ry.  Co.  v.  Carroll 

294 

v.  Baird 

267 

Chic.  No.  Shore  Ry.  Co.  v 

Payne 

294 

v.  Bank 

11 

Chick  v.  Rollins 

173. 

229 

v.  Bogardus 

172 

v.  Willetts 

221, 

223 

v.  Clough 

60 

Chidsey  v.  Powell 

69,  86 

v.  Courtney 

259,  261 

Chievly  v.  Bond 

16 

v.  Crego 

265 

Childress  v.  Grim 

7 

v.  Ford 

58,  200 

Childs  v.  Jordan 

154. 

200 

v.  Gilbert 

260 

v.  Showers 

259 

v.  Hardiman 

6,  117,  194 

Chiles  -'.  Bridges 

260 

v.  Herring 

20,  35 

v.  Conley 

259 

v.  Holbrook 

199 

v.  Smith 

54 

v.  Hooper 

190 

Chilton  v.  Wilson 

277 

v.  Hopkins 

29 

Chinnery  v.  Evans 

229 

v.  Hougham 

65,  79,  80 

Chipman  v.  Morrill 

145 

z.  Iowa  City 

127 

Cholmondeley  v.  Clinton 

58,  59 

i'.  Johnson 

229 

60,  200,  213, 

221,  235, 

259 

v.  Jones 

6,  251 

Chouquette  v.  Barada 

271 

v.  Kellar 

290 

Chouteau  v.  Barlow 

211 

v.  L.  S.  &  M.  S.  Ry. 

Co.               141 

v.  Burlando 

223 

v.  McCann 

240 

Christie  v.  Fosdick 

124 

v.  M'Guire 

68,  190 

Christmas  v.  Mitchell 

208 

v.  Moody 

123 

v.  Russell 

4 

v.  Parsons 

259 

Christy  v.  Alford 

269, 

271 

v.  Reyburn 

221 

v.  Dana 

223 

v.  Roop 

25 

v.  Flemington 

7 

[,  79 

v.  Sigourney 

68,  285 

Church  v.  Feterow 

68 

v.  Slaughter 

183 

v.  Schoonmaker 

265 

v.  Smith 

178 

v.  Wright 

265 

v.  Tabor 

267 

Churcher  v.  Martin 

58 

v.  Trail 

6,  239,  251 

Churchill  v.  Bertrand 

140 

v.  Trindle 

200 

Cicero  &  P.  St.  Ry.  Co.  v 

Brown 

294 

v.  Van  Loon 

276 

Cincinnati  v.  Evans 

53 

CI 

arke  v.  Boorman 

58,  212 

v.  First  Presbyterian 

Church 

53 

v.  Bradshaw 

7i 

Cincinnati  Bank  v.  Burkh 

ardl 

54 

v.  Clarke 

265 

Cincinnati,  &c.  Ry.  Co.  v. 

Gray 

294 

v.  Cross 

251 

Circlevillc-  Bank  v.  Iglehart 

25 

v.  Dougan 

270 

Citizens'  Hank  v.  Brown 

142 

v.  Dutcher 

68,  70,  93.  152 

v.  Hyans 

141 

v.  Jenkins 

141 

v.  Johnson 

68 

v.  M'Anulty 

174 

v.  Jiiflv 

59 

v.  Marriott 

183 

City  Nat.  Bank  v.  Phelps 

149 

v.  Mississippi  Bank 

250 

Clatlin  v.  Godfrey 

20 

v.  New  York 

54 

Clarke  v.  Reeder 

v.  Wagner 

v.  Yonge 
Clarkin  v.  Brown 
Claussen  v.  La  Franz 
Clawson  v.  McCune 
Clay  v.  Clay 

v.  Iseminger 
Clayton's  Case 
Clayton  v.  Gosling 
Cleave  v.  Jones 
Clemens  v.  Wilkinson 


SECT. 

183 
257 
184 
278 
201 

79 

30,  200 

11 

54 

118,  125 

96,  105,  in 

11 


Clement  v.  New  York  L.  Ins.  Co.       42 
v.  Perry  268 

Clementson  v.  Williams       4,  68,  69, 

70,  71,  72,  77 

Clemm  v.  Wilcox  265 

Clepper  v.  Hutchinson  6 

Cleveland  v.  Cleveland,  &c.  Ry.  Co.      11 

v.  Crawford  255 

v.  Harrison  222,  235,  286 

v.  Williamson  58 

Cleveland  Ins.  Co.  v.  Reed  58, 

60,  172,  271 
Cleverly  v.  Brackett  22 

Clifford  v.  Dam  179 

Clifton  v.  Hooper  178 

Cline  v.  Catron  259 

Clinlon  v.  Eddy  7 

Clinton  County  v.  Cox         222,  223,  230 
Close  v.  Samm  259 

Cloud  v.  Ivie  201 

Clough  v.  McDaniel  97 

v.  Rowe  223 

Cluggage  v.  Duncan  261 

Clute  v.  Voris  256 

Coadv  v.  Reins  11 

Coates'  Estate  200 

Coates  v.  Coates  188 

v.  Roberts  222 

Cobb  v.  Norwood  188 

v.  Smith  258 

v.  Thompson  8 

Cobham  v.  Mosely  70,  71 

Coble  v.  Wellborn  173 

Coburn  v.  Factors'  &  Traders'  Ins. 

Co.  27 

v.  Hollis  257,  258 

Cochran  7/.  Dawson  146 

v.  Linville  Impr.  Co.  235,  2.65 


F   CASES. 

XXXill 

SECT. 

Cochran  v.  Tatum 

25 

Cochrane  v.  Faris 

211 

Cocke  v.  Hoffman 

M5 

Cocke  v.  M'Ginnis 

20,   200 

Cockfield  v.  Farley 

IOI 

v.  Hudson 

IS3 

Cocking  v.  Ward 

280 

Cockram  v.  Welby 

25.  33.  1S4 

Cockrill  v.  Cockrill 

276 

v.  Sparkes 

68,  77 

Cocks  v.  Gray 

227 

v.  Weeks 

69.  7o,  73>*7 

Codman  v.  Jackson 

265 

v.  Rogers 

35,  60,  118,  124 

v.  Winslow 

261 

Cody  v,  Quarterman 

265 

t.  Sheldon 

146 

Cofer  v.  Brooks 

259 

Coffey  v.  Emigh 

59.  60 

Coffin  v.  Anderson 

17,  142 

v.  Bucknam 

97,  106,  115 

v.  Rich 

11 

Coffing  v.  Dodge 

276 

Coffrin  v.  Cole 

256 

Coggs  v.  Bernard 

233 

Coggswell  v.  Dolliver 

277,  280 

Cogwin  v.  Ball 

123 

Cohen  v.  Aubin 

64,  69 

Coit  :'.  Campbell 

61 

v.  Tracy 

285 

Colburn  v.  Mason 

266 

v.  Monroe  Baptist  Chuich  r25 

Coldcleugh  v.  Johnson  65,  223 

Cole  v.  Bradbury  269,  271 

7'.  Hawes  173 

v.  Jessup  245,  247 

v.  Joliet  Opera  House  Co.  150 

v.  Maxfield  265 

v.  McGlathry  214,  274 

v.  Parkman  263 

v.  Runnells  6,  240 

Coleman  v.  Billings  259,  267 

v.  Davis  205,  212 

v.  Forbes  287 

v.  Holmes  6 

v.  Keenan  54 

v.  Lyman  173 

v.  Lyne  60 

v.  Pickett  256 

v.  Walker  136 


XXXIV 


STATUTES   OF   LIMITATION. 


SECT. 

Coleman  v.  Whitney 

16,  60 

Coles  v.  Kelsey 

68,  69 

v.  Portis 

188 

v.  Withers 

21 

Coley  v.  Henry 

6 

Colgate  v.  Buckingham 

129 

Collard  v.  Tuttle 

58.  123 

Colledge  v.  Horn 

68,  89 

Collester  v.  Hailey 

6 

Collett  v.  Commissioners 

256 

v.  Frazier 

76 

Collier  v.  Couts 

6,  291 

Collins  v.  Benning 

123,  124,  209 

v.  Driscoll 

117 

v.  Goodall 

32,  53 

v.  Johnson 

25.  270 

v.  Mack 

7 

v,  Peebles 

40a,  52 

v.  Smith 

259 

v.  Thayer 

153,  160 

v.  Tillou 

236 

v.  Torrey 

172,  173,  221 

Collis  v.  Stack 

68.  77 

Collyer  v.  Willock 

68.  73.  97,  105 

Colrick  v.  Swinburne 

60,  180 

Coltman  v.  Marsh  68 

Colton   v.  Smith  221 

Columbia  Bank  v.  Patterson  25 

v.  Sweeny  68,  78 

CoWille  v.  Middleton  181 

Colvin  v.  Buckle  146 

Comegvs  v.  Carley  270 

Comer  v.  Allen  68,  79 

Commissioners  v.  Smith  276 

v.  Wy brants  199 

Commonwealth  v.  Baldwin  52 

v.  Chambre  55 

v.  Cochituate  Bank  129 

v.  Duffy  13 

v.  Frost  168 

v.  Hutchinson  52 

v.  Johnson  52 

v.  Martin  55 

v.  McGowan  65 

t.  I 'alter son  29 

v.  Roxbury  258 

r.  Shortridge  55 

v.  Springfield,    M.  &   H.  Turn- 

pike  Co,  149 

v.  Stanley  55 


SECT. 

Commonwealth  v.  Sudbury  ri 

v.  T.  J.  Megibben  Co.  13 

v.  Whitney  139 

v.  Wood  54 

Com.  Mut.   Ins.  Co.  v.  Brett  71,  79 

Compton  v.  Chandless  183 

v.  Johnson  101 

v.  Jones  35 

Comstock's  Appeal  200 

Conant  v.  Hitt  6,  igo 

Concklin   t.  Pearson              105,  115,  116 

Condit  v.  Maxwell  58,  276 

v.  Tichenor  236 

Cone  v.  Dunham  200 

Congdon  v.  Morgan               259,  267,  271 

Conger  v.  Barker  6 

v.  Lea  212 

v.  Vandewater  34 

Confers  v.  Jackson  182 

Congreve  ?'.  Smith  179 

Conkey  v.  Hart  11 

Conklin  7'.  Furman  149 

Conkling  v.  Thackston  80 

Conlan's  Estate,  In  re  104 

Conley  v.  Finn  260 

Conn  v.  Coburn  145 

Conn.  Trust  Co.  v.  Wead  72,  77,  171,  244 

Connell  v.  Bowdry  265 

Connelly  v.  Pierson              105,  115,  116 

Conner  v.  Goodman  252 

Conover  v.  Conover             19,  58,  6S,  71 

v.  Wright  6,  273 

Conrad  v.  Nail  247 

Consalus,  AV  105 

Consequa  v.  Fanning  280 

Cons.  Ice  Co.  v.  New  York  258 

Constable  v.  Somerset  172 

Constantine   v.  Van  Winkle  259 

Contee  v.  Dawson  54 

Converse  v.  Johnson  245 

Continental  Nat.  Bank  v.  Heilman  40a 

Conway  t.  Reyburn  6S 

v.  Smith  Mercantile  Co.  54 

v.  Shrimpton  235 

Conwcll  7'.  Buchanan  68,  73,  105 

v.  Evill  236 

Conyers  v.  Kenan  256 

Conyngham  School   District  Co.  v. 

Columbia  County  53 

Coogler  w  Rogers  271 


TABLE   OF   CASES. 


XXXV 


SECT 

Cook  v.  Babcock  267 

v.  Chambers  7 

v.  Chi.  R.  I.  &  P.  R.  Co.  276 

v.  Clippard  22 

v.  Cook  68,  88.  118,  ng 

v.  Danvers  259 

v.  Finkler  222 

v.  Gray  11 

v.  Kendall  ir,  12 

7'.  Long  270 

v.  Martin  68.  iog 

v.  Nicholas  270 

v.  Prindle  221 

v.  Rives  179 

v.  Sanders  195 

v.  Sayer  185 

v.  Williams  200,  207,  215 

v.  Wood  11 

Cooke  v.  Ash  73 

v.  Barrett  59 

v.  Hoffman  145 

v.  Nathan  146 

v.  United  States  52 

Cookes  v.  Culbertson  21,  222 

Cooksey  v.  Bryan  58,  276 

v.  R.  R.  Co.  7 

Cooley  v.  Betts  209 

v.  Rose  126 

Coon  v.  Seymour  61 

Coonley  v.  Anderson  56 

Cooper  v.  Barber  182 

v.  Bickford  25 

v.  Emery  58 

v.  Greene  61 

v.  Hill  58,  276 

v.  Jones  72.  77 

v.  Ord  259 

v.  Parker  68.  76 

v.  Smith  254,  256 

v.  Thompson  127 

v.  U.  S.  Mut.  Benefit  Ass'n  42 

Coopvvood  v.  Bolton  280 

Coote  v.  Whittington  195 

Cope  v.  Humphreys  172 

Coplinger  v.  Vadcn  153 

Copley  v.  Dorkmincque  39 

Copp  v.  Lancaster  124 

Corbett's  Case  182 

Corbett  v.  Smyrna  Bank  142 

Corbyn  v.  Bramston  58 


SECT. 

Corbyn  v.  Brokmeyer  41 

Cordwell's  Estate  198,  283 

Corinne  Mill  Co.  v.  Toponce  278 
Cork  &  Bandon  Ry.  Co.  v.  Goode  19 
Corn  Exchange  B'k  v.  Nassau  B'k    140 

Cornelius  v.  Giberson  259,  267 

Cornell  v.  Moulton  54,  124 

Cornforth  v.  Smithard  68,  78 

Corning  v.  McCullough  38 

v.  Troy  Iron  Co.  257,  265,  267 

Cornish  v.  Cavvsay  54 

Cornwall  v.  Gould  22 
Cornwall   Minerals  Ry.  Co.,  In  re       36 

Corrington,  In  re  199 

Cortelyou  v.  Lansing  22,  233 

Corus  v. 173 

Costello  v.  Downer  244 

v.  Harris  271 

Coster  v.  Murray  200,  277,  278 

Cotes  v,  Harris  278 

Cotherman  v.  Cotherman  7 

Coltam  v.  Partridge  24,  280 

Cotterell  v.  Dutton  240 

v.  Long  236 

Cotton's  Case  238 

Cotton  v.  Maurer  6 

Couch  v.  Sutton  236 

Coulson  v.  Walton  58,  5g 

Coulston   v.  Carr  173 

Council  v.  Moyamensing  19,  21,  38 

Coursey  v.  Covington  26 

Coursin  v.  Penn.  Ins.  Co.  49,  51 

Courtenay  v.  Williams  188,  198,  283 

Courtney  v.  Staudenmayer  15 

Covar  v.  Cantelou  60 

Covington  v.  McNickle  267 

Cowan  v.  Magauran  68,  70 

v.  Silliman  173 

Cowdrev  v.  Coit  174 

Cowell  v.  Oxford  20,  35 

Cowhick  v.  Shingle  68 

Cowles  v.  Garrett  266 

Cowley  ?'.  Furnell  69,  77 

Cowling  v.  Higginson  182 

Covvper  v.  Godmond  140,  143 

v.  Pollard  173 

Cox  v.  Berry  11 

v.  Brown  n,  146 

v.  Cooper  289 

v.  Cox  274,  275 


XXXVI 


STATUTES   OF    LIMITATION. 


Cox  v.  Davis 

v.  Dolman 

v.  Parry 

v.  Von  Ahlefeldt 
Coyngham's  Appeal 
Cozzens  v.  Farnan 

v.  Franan 
Craddock  v.  Lee 
Craft  v.  Bullard 

v.  Thomas 
Craig  v.  Callaway  Co.  Court 
Crain  v.  Paine 
Crallan  v.  Oulton 
Cram  v.  Rceder 
Cramer  v.  Carlisle  Bank 
Cranch  v.  Kirkman 
Crandall  v.  Gallup 
Crane  v.  Abel 

v.  Buchanan 

v.  Page 

v.  Robinson 
Cranor  v.  School  District 
Cranz  --.  Kroger 
Crary  v,  Goodman  255, 

Crassen  v.  Swoveland 
Crabaugh  v.  Hart 
Craufurd  v.  Smith 
Crawford  v.  Childress 

v.  Gaulden 

v.  Taylor 
Creed  v.  Hartmann 

v.  Lancaster  Bank 
Creighton  v.  Rosseau 
Cremer's  Estate 
Cresman   v.  Caster 
Cressey  v.  Myer 

«   Parks 
Creuse  v.  Defiganiere 
Crim  v.  Kessing 
Crippen  v.  Morrison 
Cripps  v.  Davis 
Crisler  ?/.  McCoy 
Crispen  v.  Hannavan 
Criss  v.  Criss 
("1  i st  v.  Garner 
Crisvvt-ll  v.  Altemus 
Crittendon  v.  Brainard 
Crocker  :.  Avery 

v.  Clements 
Crofoot  t.  Thatcher 


! 

,ECT. 

SECT. 

II 

Croft  v.  Arthur 

275 

199 

Crofton  v.  Ormsby 

219 

I07 

Croman  v.  Stull 

68,  79 

,  86 

275 

Cromelien  v.  Brink 

54 

22 

Crompton  v.  Pratt 

no 

251 

Crook  v.  Glenn 

223, 

235 

6 

Crooker  v.  Jewell 

176 

221 

Crosby  v.  McWillie 

188 

236 

:\  Stone 

7 

124, 

125 

Crosier  v.  Tomlinson 

16 

66, 

171 

Crosley,  In  re 

276 

223 

Cross's  Case 

148 

I99 

Cross  v.  Allen 

145 

52 

v.  Ballard 

146 

265 

v.  Conner 

68 

,  73 

277 

v.  Lewis 

182 

I9O 

Crosse  v.  Young 

173 

69 

Crossley  v.  Ham 

125 

236 

v.  Lightowler 

182 

222 

Croswell  v.  Crane 

6 

266 

Crow  v.  Gleason 

97 

II 

Crowder  v.  Nichol 

73 

265 

Crowell  v.  Bebee 

259 

,  259. 

263 

Crowther  v.  Rowlandson 

275 

236 

Crozier  v.  Allen 

54 

188 

v.  Gano 

6,  117, 

251 

IIQ 

Crumbie  v.  Wallsend  Local  Board 

178 

8,  66 

Cucullu  v.  Hernandez 

230 

122, 

179 

Culbert  v.  Fleming 

200 

,  225, 

235 

Culler  v.  Motzer 

"7, 

240 

179 

Culver  v.  Rhodes 

255 

20I 

Cumming  v.  Berry 

58 

124, 

125 

Cummings  v.  Gassett 

77 

105 

v.  Wyman 

258, 

266 

68 

Cummins  v.  White 

24 

60 

Cumnock  z/.Newburyporl 

Sav.  Inst. 

22 

54 

Cumpston  v.  McNair 

146 

7 

[,78 

Cunkle  v.  Heald 

79 

3i 

Cunningham  v.  Ashley 

52 

221 

v.  Davis 

97, 

224 

68,  77,  79 

v.  Hawkins 

235. 

236 

no 

v.  McKindley 

212 

261 

271 

v.  Patton 

269 

271 

2 

v.  Pell 

149 

70 

v.  Potter 

271 

270 

v.  Robertson 

266 

222 

v.  Smith 

145 

8 

Curlewis  v.  Mornington 

190 

194 

58 

247 

Curran  v.  Witter 

142 

150 

Currey  v.  Allen 

275 

TABLE   OF   CASES. 


XXXV11 


SECT. 

Currier's  Estate 

290 

Currier  v.  Earl 

265 

v.  Gale                                251, 

261,  271 

v.  Lockwood 

72,  78 

v.  Studley             I,  3,  7,  58, 

211,  276 

Curry  v.  Landers 

11 

Curcis  v.  Home  Ins.  Co. 

49-  5i 

v.  Larkin 

58 

v.  Sacramento 

77 

Curtis5  v.  Perry 

285 

Curiner  v.  United  States 

52 

Carwen  v.  Milburn 

72,  73 

Curzon  v.  Edmonds 

68 

Cushman  v.  Blanchard 

261 

Cusiy  v.  Dolan 

77 

Cuthbert  v.  Downing 

11 

Cutler  v.  Tuttle 

201,  220 

v.  Wadsworth 

5* 

v.  Wright 

245 

Cutter  v.  Emery 

58 

Cutts  v.  Hardee 

II 

v.  York  Manuf.  Co. 

225 

Cuyler  v.  Bradt 

200 

D 

Dadmun  v.  Lamson  235 

Daggett  v.  Daggett  139 

Daingerfield  Nat.  Bank  v.  Ragland  168 

Dale  v.  Birch  123 

v.  Frisbie  11 

v.  Shively  173 

Daley  v.  Anderson  55 

Dalhande's  Succession  24 

Dana  v.  Conant  146 

v.  Kemble  20 

v.  Valentine  181 

Daneri  v.  So.  Cal.  Ry.  Co.  180 

Danforth  v.  Culver  68,  69,  71,  81 

Danglada  v.  De  la  Guerra  188 

Daniel  v.  Bridges  60 

v.  Day  6,  117 

v.  Grizzard  289 

v.  Whitfield  141 

Daniels  v.  Johnson  223 

Dann  v.  Spurrier  61 

Darby  v.  Mayer  30 

Darling  v.  Wells  11 

Darlington's  Appropriation  172 

Darnall  v,  Adams  238 

v.  Magruder  118 


Darnley  Main  Colliery  Co.  v.  Mitch- 
ell 178 
Darrow  v.  Summerhill  145 
Darwin  v.  Smith  120 
Dash  v.  Tupper  S 
v.  Van  Kleeck  11 
Daubigny  v.  Duval  21 
Daughtrey  v.  N.  Y.  &  T.  Land  Co.   257 
Davenport  v.  Sebring  256,  270 
v.  Short  7 
v.  Stafford  199,  235 
Davenport  Bank  v.  Price  124 
Davidson  v.  Beatty  261,  2O7 
v.  Delano  100,  115 
v.  Harrison  84,  96,  115 
v.  Lawrence  11 
v.  Morris  105 
v.  Peticolas  1 
v.  Phcenix  Ins.  Co.  42 
v.  Sharpe  30 
Davies  v.  Cram  123,  141 
v.  Edwards  84,  96,  101 
j.  Smith  65,  77,  81 
v.  Williams  102 
Davis's  Estate  210 
Davis,  In  re  200 
v.  Amy  no 
v.  Anderson  221 
v.  Andrews  243 
v.  Clark  52,  154 
v.  Clay  236 
v.  Coblens  6,  171,  237 
v.  Coburn  200 
v.  Cotton  214,  276 
v.  Cooke  6,  251 
v.  Davis                      41,  44,  256,  259 
v.  Duncan  183 
v.  Easley  267 
v.  Ehrman  295 
v.  Eppinger  119,  124 
v.  Funk  22 
v.  Garr                               117,  190,  194 
v.  Gorton  120,  141 
v.  Harper  7 
v.  Hart  6 
v.  McArthur  271 
v.  Minor  n,  12 
v.  Noyes  77,  86 
v.  O'Ferrall  n 
v.  Sanders  20 


XXXV111 


STATUTES   OF   LIMITATION. 


SECT. 

Davis  v.  Seattle  Nat.  Bank                  280 

v.  Shoemaker  32 

v.  Smith  121,  277,  2S0 

v.  Steiner  68 

v.  Teachout  76 

v.  Tiernan  277 

v.  Wetherell  220 

Davock  v.  Nealon  271 

Davy  v.  Field  209 

Dawkins  v.  Penryhn  7,  200 

Dawley  v.  Brown  255 

v.  Van  Court  259 

Dawson  v.  Callaway  41,  195 

v.  Dawson  200,  208 

v.  Dyer  173 

v.  Edwards  41,  259 

v.  Real  Estate  Bank  17,  142 

Day  v.  Baldwin  58,  92 

v.  Brenton  200 

v.  Crosby  172 

v.  Lamb  289 

v.  Mayo  97,  278 

v.  Roth  201 

v.  Wilder  271 

Dayton  v.  Borst  20 

Deal  v.  Patterson  II,  12 

Dean  v.  Crane  190 

v.  Dean  58,  201,  205 

v.  Goddard  269 

v.  Hewit  81,  285 

v.  Pitts  70,  71,  77 

v.  Ross  275 

v.  Thwaite  275 

De  Arnaud  v.  United  States  7,  239 

Dease  v.  Jones  251 

De  Bouchout  v.  Goldsmid  21 

De  Camp  v.  Crane  236 

v.  Mclntire  105 

De  Cordova  v.  Galveston  n 

Decker  v.  Decker  141 

Decouche  v.  Savetier  8,  200,  205,  212 

Deep  River  Nat.  Bank,  In  re  85 

De  Foresl  v.  Hunt  77 

v.  I.eete  173 

v.  Walters  59 

De  Freest  v.  Warner  68,  79 

D     Frieze  v.  Quint  256 

uv  v.  Mechan  60 

I )  •  Guire  -■.  St.  Joseph  Lead  Co.         2S2 

Dehart  v.  Gard  172 


SECT. 

De  Haven  v.  Bartholomew  39 

Dekay  v.  Darrah  6,  194,  240,  243 

De  Koslowski  v.  Yesler  101 

Delahay  v.  McConnel  236 

De  Lancey  v.  Hawkins  258 

De  Lane  v.  Moore  60 

Delaney  v.  Fox  265 

De  la  Torre  v.  Barclay  68,  69,  125 

De  Lavallette  v.  Wendt  124 

Delavan  Nat.  Bk.  v.  Cotton        105,  14s 
De  la  Vega  v.  Butler  269 

v.  Vianna  10 

Delaware,  &c.  R.  Co.  v.  Burson    18,  38 
De  Lisle  v.  Priestman  22 

Deloach  v.  Turner  68,  81 

De  Long  v.  Mulcher  267 

Deloraine  v.  Browne  58 

Demandray  v.  Metcalf  21,  22 

De  Mares  v.  Gilpin  60 

Demarest  v.  Wynkoop       6,   58,  222, 

225,  251,  252 
Demmy's  Appeal  188 

De  Moss  v.  Newton  11 

Den  v.  Leggat  259 

v.  Moore  251,  259 

v.  Putney  259 

v.  Richards  6,  240,  251,  259 

Dench  v.  Walker  183 

Denham  v.  Holeman  267,  269 

Denise  v.  Denise  105 

Dennett  v.  Crocker  257 

Dennick  v.  Railroad  Co.  9,  194 

Dennison  v.  Qoehring  24 

Dennistoun  v.  Rist  296 

Denny  v.  Eddy  199 

v.  Marrett  86,  95 

v.  Smith  246 

Denton  v.  Embury  122,  123 

Denver  &  R.  G.  R.  Co.  v.  Wilson      254 
Denys  v.  Shuckburgh  178 

Department  of  Pub.  Parks,  Ex  parte  260 
Depeyster  v.  Gould  220 

Deputron  v.  Young  261 

Derrick  v.  Lamar  Ins.  Co.  49 

Derrickson  v.  Cady  122 

De  Rutzen  v.  Lloyd  182 

Dervient  v.  Lloyd  262 

De  St.  Laurent  v.  Gescheidt  255 

Deshon  v.  Eaton  64 

Des  Moines  County  v.  Harker  52 


TABLE    OF    CASES. 


XXXIX 


Dessaunier  v.  Murphy 
Detroit  v.  Hosmer 
Devacht  v.  Newsam 
Devayne  v.  Noble 
Devereaux   v.  Henry 
Devine  v.  Murphy 

v.  Wilson 
Devor  v.  Rerick 
Devore  v.  Sunderland 
Devyr  v.  Schaefer 
Dewdney,  Ex  parte 
Deweese  v.  Smith 
Dewey  v.  McLain 
Dexter  v.  Arnold 
Deyo  v.  Jones    • 
Diamond  v.  Tobias 
Dibb  v.  Walker 


SECT. 

251 

294 

265 

17,    18 

86 

84 

52 

7 

173 

263 

58,  68,  188 

149 

259 
58,  222,  225,  235 

73.  190 

172 

80 


Dibble  v.  Bellingham  Bay  Land  Co.  259 


239 

259 

68,  82,  84 

60 
146 

11 
171 
259 
295 


Dicken  v.  Johnson 
Dickenson  v.  Breeden 

v.  Hatfield 
Dickerman  v.  Burgess 
Dickerson  v.  Derrickson 

v.  Morrison 

Dickey  v.  Armstrong 

Dickinson  v.  Brown 

v.  Collins 

v.  Conway  68 

v.  Leominster  Sav.  Bank     118,  200 

v.  Lott  69 

v.  McCamy  4,  64 

v.  Mayor,  &c.  179,  243 

v.  Teasdale  199,   201,  205,  207 

v.  Williams  277 

Dickson  v.  Desire  173 

Didier  v.  Davison  II,  245 

Diefenthaler  v.  Mayor,  &c.  7,  59 

DiefTenbach  v.  Roch  30 

Diemer  v.  Sechrist  172 

Dighton  v.  Greenvil  200 

Dikeman  v.  Parrish  259,  270,  271 

Dili   v.  Wareham  140 

Dillard  v.  Philson  251 

Dillebaugh's  Estate  205 

Diller  v.  Brubaker  22 

Dillingham  v.  Skein  25 

Dillon  v.  Dougherty  11 

v.  Mattox  259,  267 

Dilworth  v.  Carter  34 

Dinckerlocker  v.  Marsh  13 


Dinguid  v.  Schoolfield  68, 
Dinsdale  v.  Dudding 
Dinsmore   v.  Dinsmore 
Divine  v.  Bullock 
Dix  v.  Burford 
v.  Marcy 
Dixon  v.  Clark 

v.  Nuttall 
Doane  v.  Russell 
Dobbs  v.  Humphrey 
Dobson  v.  Murphy 

v.  Quantrell 
Dodds  v.  Vannoy 
Dodge  v.  Coffin 

v.  Leavitt 
Dodson  v.  Mackey 
Doe  v.  Ashmore 

v.  Barksdale 

v.  Campbell 

v.  Danvers 

v.  De  Veber 

j.  Eslava 

v.  Hellings 

v.  Hersey 

v.  Irwin 

v.  Jones 

v.  Jesson 

v.  Roberts 

v.  Seaton 

v.  Watton 

v.  Whitroe 

v.  Williams 
Doebler  v.  Snavely 
Dolbier  v.  Agricultural  Ins 
Don  v.  Lippmann 
Donahue  z.  O'Connor 
Donald  v.  Sims 
Donnelly  v.  Brooklyn 

v.  Donnelly 
.  v.  Simonton 
Donohue  -•.  Whitney 
Dooby  v.  Walson 
Doolittle  v.  Tice 
Dooly  v.  Isbell 
Doran  v.  Seattle 
Dormer  v.  Fortescue 
Dorr  v.  Rohr 

v.  Swartwout 
Dorrance  v.  Morrison 
Dorsey  v.  Clarke 


SECT. 

79,  80,  85,  92 
199,  205 

68,  285 


35. 
Co 


183 
199,  205 

20 
256 
124 

22 

35 
259 

6S 

123 

8 

97 

68,  89 

265 

251 

267 

259,  270 

235 

270,  271 

266 

54 

6 

6 

6 

52 

265 

54 

265 

229 

199,  205 

42 

10 

267 

172,  229 

42 

275 
222,  234 

259 
209 

255 

I 

i  So 

184 

245 

68,  245 

124 

201 


xl 


STATUTES    OF    LIMITATION. 


Dorsey  v.  Maury 

Dorsey  Machine  Co.  v.  McCaffrey 
Doswell  v.  De  la  Lanza 
Doughty  v.  Doughty 
Dougherty  v.  Wheeler 
Douglas  v.  Corry 

v.  Elkins 

v.  Forrest 

v.  Irvine 

v.  New  York 
Douglass  v.  Blackstone 

-.'.  Cline 

v.  Hovvland 

v.  Reynolds 
Dover,  Ex  parte 

v.  Maestaer 
Dow  v.  McKenney 

v.  Stephens 
Dowdenay  v.  Oland 
Dowell  v.  Tucker 
Dowling  ;\  Ford 
Downer  v.  Baxter 

v.  Ford 
Downes  v.  Bullock 

-j.  Charlestown  Bank 

v.  Cooper 

v.  Phoenix  Bank 
Downing  v.  Ford 

v.  Miller 
Downs  v.  Sooy 
Dows  v.  Durfee 
Dowthwaite  v.  Tibbut 
Dox  v.  Postmaster-General 
Doyle  v.  Wade 
Dozier  v.  Ellis 
Drake  v.  Curtis 

v.  Wet  more 
Draper  v.  Shoot 
Drayton  v.  Marshall 
Drennen  v.  Walker 
Dresser  v.  Dresser 
Dreutzer  v.  Baker 
Drew  v.  Towle 
Drexel  v.  Raimond 
Driver  v.  Hudspeth 
I  Irummond  v.  Sant 
Iirury  v.  Vannevar 
Drj   dale's  Appeal 

Delaware,  &c.  Canal  Co. 

V.  Mitchell 


SECT. 

SECTV 

30 

Ducker's  Succession 

IOI 

Jaffrey 

275 

Duckett  v.  Crider 

251 

271 

Duckworth  v.  Roach 

187 

243 

Dudley  v.  Folliott 

173 

125 

Duffitt  v.  Tuhan 

117 

17 

Duffy,  Re 

165 

63,  73 

2  74 

v.  Ogden 

54 

6 

Dugan  v.  Gittings 

59. 

202 

251 

6 

Duke  v.  Harper 

265 

247 

Duke  of  Leeds  v.  Amherst 

60,  61 

285 

Duke  of  Norfolk's  Case 

22 

221 

Dukes  v.  Leowie 

25 

146 

Dunavant  v.  Fields 

278 

146 

Dunbar  v.  Johnson 

20 

205 

Duncan  v.  Earl  of  Moray 

181 

28 

v.  Helm 

no 

263 

Dundas  v.  Muhlenberg 

21 

261 

Dunham  z\  Dodge 

286 

173 

v.  Sage 

240 

6 

v.  Minard 

173 

115 

Dunham   Lumber  Co.  v.  Holt 

28l 

145 

Dunn  v.  Fleming 

277 

265 

v.  O'Keefe 

125 

58,  199, 

205 

v.  Tillery 

221 

17 

Dunne  v.  Doran 

2l8 

265 

v.  Stotesbuiy 

60 

142 

Dunning  v.  Ocean  Nat.  Bank 

I90 

6, 

251 

Dunshee  v.  Grundy 

265 

259 

Dupas  v.  Wassell 

265 

172, 

229 

Dupleix  v.  De  Roven 

1 

,  16 

252 

280 

Duramus  v.  Harrison 

6 

65,  63 

Durant  v.  Essex  Co. 

30 

52 

Durdon  v.  Gaskill 

35, 

200 

205 

6 

Durel  v.  Tennison 

271 

252 

Durell  v.  Mosher 

183 

258 

Duroure  v.  Jones 

6. 

240 

251 

21 

Duryea  v.  Andrews 

118 

267 

Dusenbury  v.  Keiley 

176 

22y 

Dutcher  v.  Wright 

54 

240 

Dutchess  Cotton  Co.  v.  Da 

ris 

35 

24 

Dutton  v.  Insurance  Co. 

42 

7 

v.  Salmonson 

I37'f 

260 

v.  Warschauer 

221 

123 

Duty  v.  Graham 

222, 

223 

232 

Duval  v.  Terry 

53 

226 

Duvoll  r'.  Wilson 

200 

139 

I) wight  v.  Matthews 

20 

283 

Dwindle  v.  Edey 

24 

nal  Co. 

25 
265 

Dyer  7>.  Ashton 
v.  Brannock 

107 
161 

TABLE   OF   CASES. 


xli 


Dyer  v   Curtis 
v.  Dupey 
v.  Gibson 
v.  Gill 


SECT. 
1 80 
182 
I46 

II,  39 


v.  Walker   96,  104,  115,  277,  278,  280 

v.  Waters  200,  217 

v.  Wittier  117 

Dyott  v.  Letcher  279 

E. 

Eagan  v.  Kergill  117 

Eager  v.  Commonwealth  6,  251 

Eagle  v.  Brunswick  Bank  258 

Eagle  Bank  v.  Smith  20 

Eagle  Ins.  Co.  v.  Lafayette  Ins.  Co.  42 

Eames  v.  Savage  153 

Earle  v.  Bickford  140 

v.  Hale  265 

v.  Oliver  77 

Early  v.  Garland  267 

Earnshaw  v.  Stewart  223 

East  v.  East  197 

Eastabrook  v.  Moulton  126 

Eastman  v.  Sc.  Anthony  Co.  180 

Easton  R.  R.  Co.  v.  Relief  Ins.  Co.     45 

East  Hampton  v.  Kirk  255,  258 

East  India  Co.  v.  Campion  59,  63 

v.  Paul      76,  123,  137,  140,  177,  178 

East  Rome  Town  Co.  v.  Cothran       259 

Eastman  v.  Forster  222 

Easton  v.  Long  124 

v.  McAllister  118,  124 

East  Tenn.  Iron  Co.  v.  Wiggin  237 

East  Tenn.  R.  Co.  v.  Bayliss  179 

Eastwood  v.  Kennedy  9,  194 

v.  Saville  105,  ill,  115 

Eaton  v.  Gillet  104 

v.  Jaques  221 

v.  Sanford  251 

v.  Supervisors  of  Manitowoc         12 

v.  Walton  209 

Ebb's  Estate,  In  re  6 

Eberstein  v.  Willets  101 

Eccl.  Com'rs  v.  Treemer  265 

Eckert  v.  Wilson  64,  6S,  69,  70 

Eckford  v.  Evans  68,  84 

Eckstein  v.  Shoemaker  11 

Eddins  v.  Graddy  6 

Eddowes  v.  Niell  146 

Edgar  v.  State  116 

Edge  v.  Edge  153 


SECT. 

Edgerton  v.  Bird  259 

Edings  v.  Whaley  60 

Edmands  v.  Tipton  223 

Edmonds  v.  Goater  68,  S7 

Edmonstone  v.  Thomson  277,  278 

Edmunds  v.  Downes  77,  87,  94 

v.  Waugh  4.  199 

v.  Wiggin  20 

Edsell  v.  Buchanan  58 

Edson  v.  Merchants'  Mut.  Ins.  Co.     51 

v.  Munsell  182 

Edwards  v.  Bates  County  127 

v.  Culley  79.  85 

v.  Ingraham  154 

v.  Janes  103,  in 

v.  Jarvis  6 

v.  Lycoming  Ins.  Co.  42 

v.  McCaddon  n 

v.  Nichols  20 

v.  University  200,  213 

v.  Warden  217 

Effinger  v.  Henderson  no 

Egan  v.  Oakland  Ins.  Co.  42 

Egberts  v.  Dibble  8 

Ege  v.  Barnitz  146 

v.  Medlar  257,  259 

Ege's  Appeal  54 

Egerton  v.  Logan  123 

Egery  v.  Decrew  96 

Eggington  v.  Lichfield  178 

Egremont  v.  Hamilton  5S 

Eicke  v.  Nokes  78 

Eiffert  v.  Craps  59 

Eigleberger  v.  Kibler  275 

Eingartner  v.  Illinois  Steel  Co.     n,  243 

Elder  v.  Bradley  1 

v.  Dyer  71 

v.  Henry  32 

v.  McClaskey  240 

Eldridge,  In  re  200 

v.  Knott  29,  5S 

v.  See  Yup  Co.  201 

v.  Smith  278 

Elfe  Assoc,  v.  Cole  221 

Elgee  v.  Lovell  6 

Elgin  v.  Anderson  294 

Elkins  v.  Edwards  21,  222 

Elkinton  v.  Newman  41 

Ellicott  v.  Nichols  105,  145,  287 

v.  Pearl  267 


xlii 


STATUTES   OF   LIMITATION. 


Eliot  v.  Lawton 
Elliot  v.  Cronk 
Elliotson  v.  Feetham 
Elliott  v.  Dycke 

v.  Leake 

v.  Lochnane 

v.  Mitchell 

v.  Pearce 

v.  Smith 


SECT. 

121,  141 

20 
l8l 
268 
68,  69 
11 
259 
259 
265 


Ellis  v.  Essex  Merrimack  Bridge        20 

v.  Kelso  179-  274 

v.  Linck  *7>  J42 

v.  Smith  6o 

v.  Welch  173 

Ellison  v.  Allen  *94 

v.  Cat  heart  260 

v.  Moffatt  DO 

Ellsworth  v.  Brewer  20 

Elmendorf  v.  Taylor         58,  59-  213. 

215.  235 
Elmore  v.  Robinson  9° 

Elmoyle  v.  Cohen  222 

Elsberry  v.  Boykin  223 

Elwood  v.  Deifendorf  58,  145 

Ely  v.  Brown  258 

v.  Holton  I2 

Elyton  Land  Co.  v.  Denny  269 

Embrey  v.  Jemison  245 

Emerson  v.  Atwater  236 

v.  Miller  7° 

v.  Thompson  188,  190 

Emery  v.  Day  Il8,  119.  I24 

Emmons  v.  Hayward  119.  I23 

v.  Overton  287 

Enfield  v.  Day  263.  267 

Engel  v.  Brown  97 

v.  Fischer  124,  245,  247,  2?i 

England,  In  re  32 

v.  Slade  265 

Fn^'leman  v.  State  57 

English  v.  Lane  236 

v.  Wathen  104,  105 

Ennis  v.  Pullman  Palace  Car  Co.  68,77 
Enos  v.  Hunter  201 

Ephraim  v.  Pacific  Bank  46 

Epperson  v.  Hosietter  179 

Eppcs    v.    Mississippi,    &c.    R.    R. 

<    ,  150 

!      .liable  Mar.  Ins.  Co.  v.  Adams     129 
Erhart  v.  Dietrich  97 


Erie  R.  R.  Co.  v.  Del.  L.  &  W.  R. 

R.  Co.  61 

Erskine  v.  North  235 

v.  Townsend  221 

Estebene  v.  Estebene  no 

Estes  v.  Blake  139 

v.  Kyle  8 

v.  Stokes  123.  209 

Etter  v.  Finn  !94- 

Eubanks  v.  Leveredge  5S 

Evans  v.  Bacon  58 

v.  Carey  "8 

v.  Davies  103.  108 

v.  Erie  County  53 

v.  Gallaway  289 

v.  Hardeman  120 

v.  Huffman  172,  173 

v.  Jones  78 

v.  Montgomery  n,  276 

v.  See  153 

v.  Simon  85 

v.  Tweedy  199 

v.  Vaughan  173 

v.  Yongue  282 

Evarts  v.  Nason  200 

Everett  v.  Niagara  Ins.  Co.  42 

v.  Robertson  72 

v.  Whitfield  6 

Evertson  v.  Miles  20,  21 

v.  Newport  Nat.  Bank  127 

v.  Tappen  208 

Ewell  v.  Chi.,  &c.  R.  R.  Co.  117 

v.  Daggs  7,  145 

v.  Tidwell  183 

Ewer  v.  Lowell  2b6 

Ewing  v.  Bailey  54 
v.  Burnet                          256,  259,  267 

v.  King  199 
Exchange  F.  Ins.  Co.  v.  Norris  222 
Exeter  Bank  v.  Sullivan     68,  70,  73. 

285,  287 

Express  Co.  v.  Caldwell  51 

Eyermann  v.  Piron  224 


F. 
Fagan  v.  Rosier 
Failing  v.  Schenck 
Fain  v.  Garthright 
Fair  v.  Mevey 
Fairbanks  v.  Dawson 


259 
270 
260 
280 
105 


TABLE   OF   CASES. 


xliii 


Fairbanks  v.  Long 

6 

Fairchild's  Case 

7 

Fairchild  v.  Holly 

no 

Fairfax  v.  Fairfax 

188 

Faison  v.  Bowden 

68, 

79. 

86,  98 

Falls  v.  Torrence 

60 

Faloon  v.  Simshauser 

271 

Fannin  v.  Anderson 

253 

Fanning  v.  Chadwick 

24 

v.  Colt 

188 

v.  Willcox 

271 

Fargo  v.  Buell 

no 

Farish  v.  Coon 

271 

Farley  v.  Kustenbader 

68, 

70, 

77.  Si 

v.  Rogers 

265 

Farmer  v.  Ray 

273 

Farmers'  Bank  v.  Clark 

77 

v.  Planters'  Bank 

17 

Faimers',   &c.    Bank    v.   Butchers', 

&c.  Bank  142 

v.  Payne  20 

F.  &  M.  Bank  v.  Leath  188,  190 

Farmers'    &    Mechanics'     Bank    v. 

Planters'  Bank  142,  209 

v.  Wilson  270 

Farmers'  Loan  &  Trust  Co.  v.  Beck- 
ley  21 
Farnam  v.  Brooks     58,  59,  200,  212, 

274,  280 
Farrar  v.  Fessenden  259,  267 

Farrell  v.  German  Am.  Ins.  Co.  42 

Farringer  v.  Ramsay  201 

Farrington  v.  Barr  201 

v.  Lee  278 

v.  Payne  183 

Farrow  v.  Bullock  260 

v.  Edmundson  259 

Farwell  v.  Jacobs  35 

Fatheree  v.  Fletcher  240 

Faulkner  v.  Bellingham  33 

v.  Delaware,  &c.  Canal  Co.         250 

v.  Jones  139 

Favorite  v.  Booher  252 

Fawke  v.  Slaughter  2or 

Fay  v.  Cheney  221 

Faysoux  v.  Prather         6,  118,  240,  251 
Feamster  v.  Withrow  16 

Fearn  v.  Lewis  68,  77,  87 

v.  Shirley  240 

Fears  v.  Sykes  8,  10,  183,  194 


Feazle  v.  Simpson 
Fee  v.  Fee 
Feeter  v.  Heath 
Feldman  v.  Gamble 
Fellows  v.  Guimarin 


SECT. 

289 
252,  274 

25 
no 

68 


Fells  Point  Sav.  Inst.  v.  Weedon     nS, 

124 

Feltmakers'  Co.  v.  Davis  19 

Felton  v.  Dickinson  25 

Fenno  v.  English  121 

Fennyery  v.  Ransom  59,  222 

Fenson  v.  Sanger  213 

Fenton  v.  Emblers  119 

Fenwick  v.  Reed  228 

Fergus  v.  Gore  58 

Ferguson  v.  Bartholomew  270 

v.  Broome  41 

v.  Peden  257 

v.  Scolt  188 

v.  Taylor  64,  68,  69 

v.  Union  Furnace  Co.  233 

Ferguson  v.  Wright  24 

Fergusson  v.  Fyffe  190 

Ferris  v.  Henderson  274 

v.  Paris  123,  209 

v.  Ward  54 

v.  Williams  ng,  124 

Ferry  v.  Ferry  126  ,151 

Ferson  v.  Sanger  59,  60 

Fewell  v.  Collins  6,  240,  251 

Fewlass  v.  Keeshan  289 

Ficklin  v.  Carrington  245 

Fidelity  Ins.  Co.  v.    Roanoke   Iron 

Co.  289 

Field  v.  Boynton  259 

v.  Sims  21 

v.  Wilson  172,  229 

Fincke  v.  Funke  244 

Findley  v.  Stewart  252,  276 

v.  Patterson  251 

Fink  :•.  Campbell  240 

v.  O'Neil  52 

Finkbone's  Appeal  65,  142 

Finlay  v.  Cook  259 

Finn  v.  United  States  7 

Finnell  v.  O'Neal  163 

Finney  v.  Ackerman  11 

v.  Cochran  200,  215 

First  Congregational  Soc.  v.  Miller 

73,  77 


xliv 


STATUTES   OF   LIMITATION. 


First  Nat.  Bank  v.  Ballou 

v.  King 
v.  O'Connell 
v.  Price 
v.  Thompson 
v.  Woodman 
Firth  v.  Slingsby 
Fischer  v.  Hess 
Fish  v.  Farwell 

z.  Wilson 
Fishar  v.  Prosser 
Fisher  v.  BennehofT 
v.  Boody 
v.  Duncan 
v.  Fisher 
v.  Harnden 
v.  Hartley 
v.  Mayor,  &c. 
z.  Mossman 
v.  New  York 
v.  Pond 
v.  Tucicer 
v.  Tuller 


SECT. 
IOI 

149 
2S2 
124 
188 

68 

73 

68 

11 

208 

29,  256,  270 

259 

60 

79,  190 

247 

4.  252 

244 

179 

188,  222 

172,  222 

179 

205 

274 


Fishwick  v.  Sewall  6,  183,  190,  194,  212 

Fisk  v.  Stewart  223,  235 

Fiske  v.  Briggs  rI 

v.  Hibbard  68,  84 

v.  Needham  64,  68 

Fitch  v.  Hilleary  277 

v.  Mann  259 

v.  Redding  64.  68 

Fitts  v.  Beardsley  274 

Fitzgerald  v.  Fitzgerald  &  Mallory 


Const.  Co.  59 

Fitzhugh  v.  Anderson  6,  240,  251 

Fitzpatrick  v.  Smith  236 

Flack  v.  Haynie  I23 

Fladong  v.  Winter  199.  253 

F  lagg  v.  Ruden  J72 

Flanders  v.  Cobb  294 

v.  Train  2^5 

Fleming  v.  Burnham  ir7 

v.  Culbert  18,  122,  123,  276 

r.  Criswold  240 

v.  Hayne  9^ 

7  .  Katahdin  Pulp  &  Paper  Co.  269 

?/.  Staton  79 

Fletcher  v.   Daniels  72 

.  Fuller  258 

7.  Gillan  68 


SECT. 
221 

145 

265 

35 

8 
79.  103 
181,  182 
132 
53 
277 
252 
8,  174 
260 
84 
53 
240 
221 
7,  200 
17 
52 
"5 
199 
190 
229 
7,  245,  247 
71.  277 
41 
289 
267,  269 
190 

259 

289 

81,  190 

194 

Forster  v.  Cumberland  Val.  R.  Co.     38 
v.  Patterson  D 

Forsyth  v.  Bristowe  80.  86 

v.  Clark  201 

v.  Ganson  I9° 

v.  Ripley  ».  I2 

Forte  v.  Vine  J73 

Fort  Edward  Nat.  Bank  v.  Washing- 
ton Co.  Bank  T42 
Fort  Scott  v.  Hickman               68,  72,  79 
v.  Schulenberg  276 
Fortune  v.  Hayes  73 
Forward  v.  Deetz                          265.  266 
Foster's  Case  33 
Foster  v.  Allanson                                 28<> 
v.  Dawber  97 


Fletcher  v.  Holmes 
v.  Jackson 
v.  M'Farlane 
v.  Piatt 
v.  Spaulding 
v.  Updike 
Flight  v.  Thomas 
Flint  v.  Rogers 
Flood  v.  Patterson 
Flourney  v.  Wooten 
Flower,  Succession  of 
Flowers  v.  Foreman 
Floyd  v.  Mintsey 

v.  Pearce 
Floyer  v.  Lavington 
Flynt  v.  Hatchett 
Fogarty  v.  Sawyer 
Fogg  v.  Price 
Foley  v.  Hill 
Folts  v.  New  York 
Foote  i).  Bacon 
Forbes  v.  Harrington 

v.  Smith 
Ford  v.  Ager 
v.  Babcock 
v.  Clark 
v.  Langel 
v.  Phillips 
v.  Wilson 
Fordham  v.  Wallis 
Forest  v.  Jackson 
Forman  v.  Brewer 
Forney  v.  Benedict 
Forrest  v.  Douglas 


TABLE   OF   CASES. 


xlv 


SECT. 

SECT. 

Foster  v.  Essex  Bank 

17 

,    142 

Fraser  v.  Skey 

173 

v.  Grizzle 

256 

Fratt  v.  Clark 

21 

v.  Hodgson 

210 

Fraylor  v.  Sonora,  &c. 

Co 

27S 

v.  Jack 

16 

,    121 

Frazer,  Re 

20I 

v.  Johnson 

145 

Freake  v.  Cranefeldt 

194,    199 

v.  Letz 

257 

Frear  v.  Drinker 

176 

v.  Mansfield,  Coldwater, 

&c.  R. 

Frederick  v.  Gray 

266 

Co. 

59 

Freehill  v.  Chamberlain 

127 

v.  Mapes 

173 

Freeholders  of  Somerset  v. 

Veghte     276 

v.  Maxey 

18S 

Freeland  v.  Heron 

280 

v.  Mayer 

222 

v.  McCullough 

39 

v.  Morris 

265 

Freeman  v.  Barnes 

203 

v.  Peirson 

173 

v.  Dowding 

205 

v.  Rison 

211 

276 

v.  Heath 

265 

v.  Smith 

86 

v.  Stacy 

32,  33 

v.  Starkey 

97 

190 

Freemount     Ferry     v. 

Dodge    Co. 

v.  Trustees 

20: 

Com'rs 

61 

Foulk  v.  Brown 

172 

French  z:  Davis 

188 

Foulke  v.  Bond 

256 

z.  Dickey 

7,  200 

Foust  v.  Trice 

265 

v.  Frazier 

68,  69,  71 

Foutee  v.  Bacon 

287 

v.  Merrill 

200 

Fowke  v.  Beek 

260 

v.  O'Neale 

154 

v.  Darnall 

260 

v.  Pearce 

256,  260 

Fowle  v.  Kirkland 

24 

Freshwater  v.  Baker 

296 

v.  Welsh 

J  73 

Frey  v.  Kirk 

11,  70,  71 

Fowler  v.  Austin 

25 

Friend,  In  re 

60 

v.  Hollins 

183 

v   Eastabrook 

265 

v.  Sharp 

289 

Fries  v.  Boisselet 

68,  70,  73 

Fox  v.  Blossom 

230, 

235 

Frink  v.  Le  Roy 

224,  225 

v.  Cash 

207, 

212 

Frisby,  In  re 

35,  2S5 

v.  Fee 

119 

Frishmuth  v.  Farmers' 

Loa 

n  &  Trust 

v.  Fisk 

279 

Co. 

40a,  265,  294 

v.  Lyon 

200 

Fritz  v.  Joiner 

6,  251 

v.  Tay 

212 

v.  Thomas 

188,  190 

v.  Zimmerman 

276 

Frosh  v.  Swett 

7,  11 

Foxcroft  v.  Lester 

5S 

Frost  v.  Bengough 

65,  68,  79 

Fraley  v.  Kelly 

98 

v.  Brisbin 

245,  247 

Francestown  v.  Deering 

201 

v.  Coon 

60 

Francis  v.  Grover 

199 

v.  Courtis 

266,  271 

v.  Harvey 

265 

v.  Earnest 

173 

Frank  v.  Brewer 

118 

v.  Frost 

200 

v.  Lanier 

140 

Fry  v.  Clow 

118 

Frankersley  v.  Robinson 

7 

v.  Kirk 

68,  70 

Franklin  v.  Merida 

265 

Frye  v.  Barker 

139 

v.  Newsom 

262 

Fryeburg  v.  Osgood 

68,  105 

Franklin  Bank,  In  re 

17, 

142 

Fryer  v.  Roe 

135 

Franklin  Ins.  Co.  v.  McCrea 

42 

Fulenvveider  v.  United  States             117 

v.  Updegraff 

42 

Fullam  v.  Foster 

258,  259 

Franz  v.  Mendonca 

258 

v.  N.  Y.  Union  Ins 

.  Co.         41,  276 

Fraser  v.  Phelps 

24 

Fuller  v.  Cushman 

58,  162,  276 

xlvi 


STATUTES    OF    LIMITATION. 


SECT. 

Fuller  v.  Eddy 

221, 

223 

v.  Hancock 

68 

v.  Jackson 

258 

v.  Oneal 

221 

v.  Redman 

188, 

197 

v.  Sweet 

265 

Fullerton  v.  Bailey 

7, 

145 

Fullwood  v.  Fullwood 

6c 

,  6r 

Fulthrope  v.  Foster 

228 

Funk  v.  Voneida 

173. 

174 

Fuqua  v.  Young 

154 

Furgerson  v.  Bagley 

259 

Furlong  z:  Garrett 

264 

v.  Stone 

153 

Furman  v.  Parke 

25 

Fusselman  v.  Worthington 

265 

G. 

Gaflord  v.  Strauss 

265 

Gage  v.  Dudley 

277 

v.  Smith 

240 

Gailer  z:  Grinnel 

64,  77 

Gaines  v.  Hammond 

237 

v.  Miller 

252 

Gainsford  v.  Grammar 

7i 

Galtraith  v.  Galbraith 

172 

Gale  v.  Capron 

115 

Gallagher  v.  Bennett 

265 

v.  Hollingsworth 

65, 

178 

Galliher  v.  Cadwell 

59 

Gallup  v.  Bernd 

21 

Galpin  v.  Barney 

68, 

101 

Galveston  v.  Guaranty  T 

rust  Co. 

20 

Galveston,  &c.  Ry.  Co.  v. 

English 

294 

Galvin's  Estate 

200 

Galway  v.  Mat.  El.  R.  R. 

Co. 

60 

Gamble  v.  Hicks 

152 

Ganaway  v.  Miller 

24 

Gans  v.  Frank 

7.  8,  10 

(ianser  v.  Ganser 

162 

Garden  v.  Bruce 

112,  124, 

140 

Gardenlaire  v.  Rogers 

72 

<  ia  rdner  v.  Brooke 

145 

Gardner,  Re 

120 

v.  Brooke 

U5 

v.  Cummings 

211 

v.  I.indo 

7 

v,  M'Mahon 

68,  76,  87,  8() 

.    Peyton 

123 

20<) 

v.  Tudor 

7 

1.  73 

Gardner  v.  Webber 
Garesche  v.  Lewis 
Garfield  w.  Bemis 
Garfield  Tp.  v.  Hubbell 


SECT, 
290,    2<}I 

117 
II 

57 


v.  Samuel  Dons  worth  Book  Co.  57 

Garland  v.  Hull  24 

v.  Milling  194 

Garlick  v.  James  22 

Garlin  v.  Strickland  154 

Garner  v.  Toney  29 

Garrard  v.  Tuck  203 

Gassaway  v.  Hopkins  8 

Garrett  v.  Garrett  145 

v.  Ramsay  268 
Garrettson  v.  N.  Atchison  Bank         124 

Garrison  v.  Sanford  173 

Gartrell  v.  Linn  68 

Gary  v.  May  222 

Gates  v.  Jacob  58 

v.  New  York  52 

Gathright  v.  Wheat  86 

Gauche  v.  Gondran  64,  6S 

Gaussen  v.  United  States  52 

Gay  v.  Allen  27 

v.  Edwards  208 

v.  Mitchell  256 

v.  Moffit  260 

Gayetty  v.  Bethune  258 
Gaylord  v.  Van  Loan                 68,  69,  7a 

Gaze,  Ex  parte  101 

Gebhard  v.  Sattler  252 

Gee  v.  Gee  201 

Geer  v.  Durham  Water  Co.  180 

Geiger  v.  Brown  6,  190 

Gelpcke  v.  Dubuque  129 

Gemberling  v.  Myer  40 

Genin  v.  Ingersoll  no 

Gennings  v.  Norton  175 

Genoa  v.  Woodruff  129 

George  v.  Gardner  7,  n 

v.  Jesson  251 

v.  Putney  265 

Georgia  Ins.  Co.  v.  Elliott  71 

V.  Endicott  79 

Gerenger  v.  Summers  182 

Gcst  v.  Heiskill  202 

Getchell  v.  Jewett  58 

Gibbons  v.  Goodrich  n 

Gibbs  v.  Bryant  J45 

v.  Chicago  Title  Co.  n 


TABLE   OF   CASES. 


xlvii 


SECT. 

Gibson  v.  Baghatt  79 

v.  Chouteau  52,  53 

v.  Clarke  52 

v.  Columbian,  &c.  B.  Co.               31 

v.  Farley  221 

v.  Henley  158 

v.  Herriott  igg 

v.  Jayne  259 

v.  Grosvenor  S6 

v.  Peebles  115 

v.  Vaughn  266 

Giddings  v.  Smith  259 

Gilbert  v.  Ackerman  n 

v.  Collins  105 

v.  Comstock  105 

v.  Henck  146 

v.  Hevvetson  7 

v.  Piatt  I9o 

v.  Sleeper  200,  212 

v.  Taylor  iIg 

Giliersleeve   v.   New   Mexico    Min. 

Co.  59>  200 

Giles  z;  Baremore  172,  173,  235 

v.  Ebs worth  265 

Gilkyson  v.  Larue  68,  70 

Gill  v.  Fauntleroy  258,  259,  266 

Gillett  v.  Balcom  224 

v.  Hill  8 

Gillette  v.  Wiley  200 

Gillingham  v.  Brown  68,  77,  86 

v.  Gillingham  7g 

-'.  Waskett  176 

Gillon  v.  Boddington  17S 

Gillum  v.  Fuqua  258 

Gilman  v.  Cutts  u,  i2 

z-.  School  District  35 

v.  Wilson  261 

v.  Wills  221 

Gilmer  v.  McMurray  68,  73 

v.  Morris  60 

Gilmore  v.  Bussey  123 

v.  Ham  2ir 

v.  Pope  35 

v.  Reed  282 

Gilson  v.  Stewart  35 

Gindrai  v.  Ala.  Western  Ry.               259 

Girard    Bank     v.     Penn.  Township 

Rank  17,  118,  140,  142 

Girdner  v.  Stephens  n,  13 
Gisborne  v.  Charter  Oak  L.  Ins.  Co.   212 


Gitlens  v.  Lowry 
Givens  v.  Mullinax 
Gladke,  In  re 
Gladwyn  v.  Hitchman 
Glass  v.  Ellison 

v.  Walker 

v.  Williams 
Glassington  v.  Rawlins 
Gleadow  v.  Atkin 


SECT. 

259 
265 

278 
224 

221 

43 

54 
115 


Gleim  v.  Rise  64,  69,  70,  265 

Glen  Iron  Works,  Re  \  ISO 
Glenn  v.  Cuttle                        18,  122,  123 

v-  Hebb  55,  60,  1S8 

v.  Leggett  i4g,  I50 

v.  M'Cullough  68 

v.  Marbury  I49 

v.  Williams  IcCJ 

Gliniston  v.  Audley  173 

Gloninger  v.  Hazard  24 

Glover  v.  Collins  25 

v.  Patten  X89 

v.  Wilson  52 

Glyn  v.  Baker  2r 

Glynn  v.  Bank  nj 

Goate  v.  Goale  69 

Godden  v.  Kimmell  58,  60,  200 

Godfrey  v.  Rice  136 

v.  Terry  5g 

Godwin  v.  Culley  j$t  84 

Goetz  v.  Voelinger  8 

Goewey  v.  Urig  257 

Goff  v.  Pawtucket  117 

v.  Robbins  53 

Gold  v.  Whitcomb  70,  278 
Goldsmith  v.  Tunbridge  Wells,  &c. 

Imp.  Co.  l82 

Golson  v.  Hook  259 

Gonsoulin  v.  Adams  jcj 

Goode  v.  Webb  5  . 

Goodell  v.  Brandon  Nat.  Bank  118 

v.  Gibbons  -, 

v.  Jackson  5 

Gooden  v.  Amoskeag  Ins.  Co.     42,  137 

Goodenough  v.  Wells  ns 

Goodenow  v.  Ewer  221 

v.  Snyder  2r 

Goodhue  v.  Barnwell  194,  212 

Gooding  v.  Varn  5 

Goodman  v.  Munks  IO,  794 

v.  Smith  j88 


xlviii 


STATUTES   OF   LIMITATION. 


SECT. 

Goodrich  v.  Conrad 

188 

Goodright  v.  Calor 

259 

v.  Forrester 

259 

v.  Siraphan 

29 

Goodtiile  v.  Baldwin 

52 

Goodwin  z\  Buzzell 

6S,  101 

v.  Chaffee 

20,  35 

v.  Cinn.  &  W.  W.  Canal  Co.         61 

v.  Parton  2S7 

v.  Provident  S.  L.  Ass.  Assoc.     42 

v.  United  States  Ins.  Co.  2S0 

Goodwyn  v.  Goodwyn  17S 

Gordon  v.  Frazer  2S0 

.  v.  Gordon  201 

v.  Kerr  60 

v.  Mounts  11 

v.  Schmidt  116 

Gore  v.  Hedges  55 

v.  Lawson  52 

Gorely  v.  Gorely  227 

Gorham  v.  Arnold  221 

v.  Brenon  265 

v.  Wing  54 

Gospel  Society  v.  Wheeler  11 

Goss  v.  Singleton  208 

Goswiler's  Case  54 

Goudy  v.  Gillam  287 

Gough  v.  Bult  199 

v.  McFall  289,  294 

Gould  v.  Camp  199 

v.  Emerson  119 

v.  Gould  60 

v.  Johnson  7,  Si 

v.  Lynde  201 

v.  Newman  221 

v.  Shirley  77 

v.  White  17".  229 

Gouraud,  In  re,  Will  of  1 

Governor  v.  Gordon  179 

v.  Stonum  154 

v.  Wood  worth  212 

( .  1  wan  v.  Forster  1 14 

G  »wer  v,  Huinlan  270 

v.  Winchester  222,  223 

Grady  v.  Wilson  239 

Grafton  Bank  v.  Doe  126,  151.  172 

mi    /  1  parte  1 1 

V,  (>;ii«  260 

V.  V.  ■  73 

v.  Nelson  203 


SECT. 

Graham  v.  Niagara  F.  Ins.  Co.  42 
v.  Selover  101 
v.  Stanton  86,  275 
Granger  v.  George  6,  1S3 
:\  Granger  6,  171 
Grannis  v.  Clark  173 
Grant  v.  Ashley  64,  6S 
v.  Burr  2T2 
v.  Fowler  259 
v.  Grant  59,  63 
7'.  Lexington,  &c.  Ins.  Co.  42 
v.  Lyman  1S1 
v.  Vaughan  21 
v.  Winborne  259 
Graltan  v.  Wiggins  41 
Gratz  v.  Prevost  212 
Graves  t.  Dudley  142 
-<.  Graves  8,  65 
z..  Shulman  16 
Gray  v.  Berryman  295 
v.  Bond  254 
z/.  Bowden  139 
v.  Green  35 
v.  Griffith  21 
v.  Kernahan  64,  68 
v.  Kerr  211 
v.  Lawridge  68,  73 
1.  McDowell  70 
r.  Portland  Bank  20 
v.  Trapnall  295 
Grayson  z:  Taylor  70 
Great  Falls  Co.  v.  Worcester  266 
Great  Falls  W.  W.  Co.  v.  Gt.  North- 
ern Ry.  Co.  256 
Great  West  Min.  Co.  v.  W7oodmas  of 

Alston  Min.  Co.  60 

Great  Western  Tel.  Co.  v.  Purdy  S 

Green's  Case  62 

Green  v.  Ball  236 

i.  Chelsea  258 

v.  Coos,  &c.  Co.  S6 

v.  Creighton  275 

v.  Cross  235 

v.  Darling  132 

v.  Disbrow  278 

v.  Fiirker  172 

v.  Fry  25 

7'.  Greensboro    Female    College 

98,  126,  2S7 

v.  \\  umphreys  72,  73 


TABLE   OF   CASES. 


xlix 


Green  v.  Johnson 

v.  Kellum 

v.  Mizelle 

v.  Morris 

v.  North  Caro 

v.  Turner  221,  223 

v.  Williams  123 

Green,  &c.  S.  P.  R.  Co.  v.  Moore  33 

Greenby  v.  Wilcocks  173 

Greenhalgh   v.   Manchester  &  B.  R. 


SECT. 

SECT. 

4,  24,  123, 

I63,    209, 

Groft  v.  Weakland 

269,  270 

212,  215 

Gross  v.  Davis 

171 

267 

v.  Fowler 

55 

223 

v.  Kierski 

153.  144^ 

IOI 

Grosvenor  v.  Magill 

54 

na  R.  Co. 

7 

Grubb  v.  Clayton 

117,  190 

Co. 

61 

Greenleaf  v.  Kellogg 

126 

Greenlees  v.  Greenlees 

200,  213 

Greeno  v.  Munson 

265 

Greenway  v.  Hart 

265 

v.  Hunter 

188 

Greenwood  v.  Greenwood 

200 

Gregg  v.  Gregg 

214 

v.  Sayre 

259 

v.  Tesson 

240 

Gregory  v.  Com. 

1.  2 

v.  Crab 

265 

v.  Parker 

65.  79 

v.  Thomson 

25 

Grenfell  v.  Girdlestone 

79-  199 

Gridley  v.  Watson 

295 

Griffin  z:  Justices 

190 

v.  McKenzie 

11 

v.  Sheffield 

265 

v.  Stamper 

259 

Griffith,  In  re 

6 

v.  Parks 

163 

v.  Robertson 

146 

v.  Schwemderman 

269 

v.  Willing 

24 

Griffon  v.  Blanc 

259 

Griggs  v.  Dodge 

24 

Grigsby  z\  Peck 

6 

Grimball  v.  Mastin 

86 

Grimes  v.  Hagood 

167 

v.  Ragland 

167 

v.  Watkins 

6 

Grist  v,  Hodges 

173 

v.  Newman 

64 

Griswold  v.  Bard 

256 

v.  Bingham 

188 

v.  Bond 

256 

v.  Butler 

240,  260 

v.  Hazard 

60 

Grubbs  v.  Vicksburg,  &c.  R.  Co.        150 

Grube  v.  Wells  256,  263 

Grumbles  v.  Grumbles  212 

Grymes  v.  Sanders  60 

Gueno  v.  Soumastre  J33 

Guichard  v.  Superveile  278 

Guier  v.  Pearce  35,  69,  70 

Guignard  v.  Parr  141 

Guild  v.  Hale  292 

Guillotel  v.  New  York  11,  12 

Guillou  v.  Perry  115 

Guinn  v.  Locke  236 

Guiterman  v.  Wishon  11 
Gulf,  &c.  R.  R.  Co.  v.  Gatewood         42 

Gulf  R.  R.  Co.  v.  Owen  257 

Gulick  v.  Loder  7 

v.  Turnpike  Co.  278,  282 
Gunn  v.  Brantley            58,  222,  225,  235 

v.  Gunn  277 

Gupton  v.  Hawkins  7 

Gustin  v.  Brattle  65 

v.  Jefferson  County  179 

Guthrie  v.  Field  235 
Guy  v.  Tarns                              68,  70,  no 

Guyther  v.  Pettijohn  266 

Gwinn  v.  Whitaker  no 

Gwynn  v.  Jones  259 


H. 

Hacker  v.  Everett 
Hackley  v.  Patrick 
Haffner  v.  Schmuck 
Hagan  z\  Parsons 
Haggart  v.  Morgan 
Haight  v.  Avery 

v.  Price 
Hail  v.  Spencer 
Haines  v.  Tharp 


247 

285,  287 
278 

222,  223 

245.  247 

286,  288 

60 

2S9 

31 


Halbert  v.  San  Saba  Springs  Land 

Assoc.  54 

Hale,  In  re  97 

v.  Andrews  145 

v.  Ard  16,  121 

v.  Ellison  163 


STATUTES   OF   LIMITATION. 


SECT. 

Hale  v.  Glidden     256, 

257,  258,  263,  267 

v.  Gladfelder 

254 

v.  Hale 

68 

v.  Handy 

25 

■v.  Jewell 

236 

v.  Pack 

224,  229 

v.  Rawallie 

142 

Hales  v.  Stevenson 

73 

Hall  v.  Bryan 

68 

v.  Bumstead 

238 

v.  Caperton 

145 

v.  Creswell 

71,  145,  175 

v.  Darrington 

1  go 

v.  Davey 

265 

v.  Dean 

173 

v.  Denckla 

6,  58,  222,  225 

v.  Dewey 

258 

v.  Doe 

229 

v.  Felton 

235 

v.  Fen  ton 

153 

v.  Gittings 

257 

v.  Hall 

l6.  21 

v.  Law 

259 

v.  Letts 

Il8 

v.  Mathias 

270 

v.  McCormick 

188 

v.  Minor 

12 

v.  Moulsdale 

259 

v.  Norfolk 

178 

v.  Noyes 

6l 

v.  Otterson 

62 

v   Powel 

258,   26l 

v.  Roberts 

Il8 

v.  Savill 

221 

v.  Stephens 

259 

v.  Thayer 

I46 

v.  Vandegrift 

"9.   259 

v.  Weyborn 

252 

v.  Wood 

120,   121 

v.  Woodman 

188 

v.  Wy bourn 

6,  53 

Halladay  v.  Weeks 

72 

Hallas  v.  Bell 

255 

Ilallcck  v.  Mixer 

21 

1 1  illeay  v.  Jackson 

222,  235 

1  [allett  r.  Hustings 

79 

Halliday  v.  Ward 

79 

Halloi  k  7 .  I.osscr 

278 

Hal  1  v,  Sr  hii  k 

236 

I  [alsey  v.  McLean 

8.9 

SECT. 
6O,    214 

59 
150 
177 
no 
180 
200 
259 
254 

58 
265 
259 
212 
294 

275 
20 

173 
256,  259,  260 

59 

190 

21 

35,  210,  212 

40a,  59,  60,  221,  235 

145 

26 1 

53 

60 

267 

173 
289 
no 

54 

29.  35 

40rt,  41 


Halsey  v.  Tate 
Halstead  v.  Grinnan 
Hamblelon  v.  Glenn 
Hambly  v.  Trott 
Hamer  v.  Kirkwood 

v.  Knowles 

v.  Sidway 
Hamilton  v.  Boggess 

v.  Brown 

v.  Hamilton 

v.  Marsden 

v.  Paine 

v.  Pritchard 

v.  Royal  Ins.  Co. 

v.  Smith 

v.  Van  Rennselaer 

v.  Wilson 

v.  Wright 
Hamlin  v.  Mebane 
Hammon  v.  Huntley 
Hammond  v.  Barclay 

v.  Hammond 

v.  Hopkins 

z:  Myers 

v.  Ridgely 

v.  Shepard 

v.  Wallace 

c.  Zehner 
Hamond  v.  Dod 
Hampe  v.  Schaffer 
Hamplon  v.  Dean 

v.  Erenzeller 
Hance  v.  Holiman 
Hanchett  v.  Blair 
Hancock  v.  Bliss     64,  68,  70,  73,  78,  93 

v.  Franklin  Ins.  Co.  22 

v.  Harper  59,  65 

v.  Ross  25 

Hancock  Nat.  Bank  v.  Farnum  149 

Hand  v.  Lee  64 

Handley  v.  Cunningham  54 

Handy  v.  Draper  119 

v.  Smith  6 

Hanger  v.  Abbott  6 

Hanks,  Ex  parte  296 

v.  Phillips  269 

Hanna  v.  Jeffersonville  R.  Co.  179 

v.  Renfro  259 

v.  Wilson  21 

Hannan  v.  Englemann  £77 


TABLE   OF   CASES. 


SECT. 

SECT. 

Hannan  z\  Hannan 

21,  65 

H 

arness  v.  Green 

SO 

.Hannay  v.  Thompson 

236 

H 

arpending  v.  Meyer 

I83 

Hannefin  v    Blake 

257 

v.  Shoemaker 

21 

Hanner  v.  Moulton 

60 

Harper  v.  Charlesworth 

IS2 

Hannan  v.  Hunnihan 

60 

v.  Fairley                   97, 

101 

112,  288 

Hannam's  Appeal 

73,  79 

v.  Hammond 

8 

Hannum  v.  West  Chester 

19.  38,  39 

v.  Hampton 

8 

Hansard  v.  Harvey 

235 

v.  Pope 

249 

Hansen  z.  Rounsavell 

HO 

v.  Tapley 

259,  269 

Hansford  v.  Elliott 

190,  195 

241 

11 

arrell  v.  White 

70 

Hanson  v.  Ingvvaldson 

259 

H 

arriet  v.  Swan 

260 

v.  Towle 

68,  77,  88 

H 

arriman  v.  Wilkins 

154 

Hanivay  v.  Merrey 

291 

H 

arrington  v.  Keteltas 

196 

Hapgood  v.  Southgate 

6 

I9O 

H 

arris  v.  Dennis 

290 

Harbaugh  v.  Moore 

259 

v.  Harris 

8.  153 

Harbold  v.  Kuntz 

64,  68,  70 

v.  Gray 

7,  11 

Harbor  v.  Morgan 

128 

v.  King 

200,  219 

Harcouri  v.  White 

60 

v.  Ligget 

25 

Hard  v.  Lee 

I9O 

v.  McGovern 

251 

Hardee  v.  Dunn 

II9 

v.  Mills                        21 

,58, 

222,  223 

Harden  v.  Palmer 

247 

v.  Moberly 

7 

Hardin  v.  Boyd 

65. 

223 

v.  Oliver 

65 

v.  Barrett 

259 

v.  Osborn 

121 

v.  Major 

55 

v.  Quine 

8 

v.  Taylor 

52 

v.  Saunders 

a 

,  16,  183 

Harding  v.  Butler 

211 

v.  Starkey 

199 

v,  Durand 

59 

v.  Vaughn 

222 

v.  Edgecombe 

103,  115. 

126 

II 

irrison  v.  Cachelin 

269 

v.  Third,  &c.  Church 

273 

v.  Davies 

no 

v.  Tifft 

no 

v.  Dolan 

258, 

269,  271 

v.  Wormley 

no 

v.  Gibson 

60 

Hardt  v.  Heidvveyer 

200 

v.  Handley 

64,  68,  69 

Hardy  v.  Corliss 

289 

v.  Handey 

6S 

v.  Harbin 

276 

v.  Hardy 

69 

Hare  v.  Pearson 

183 

v.  Harrison 

252 

Hargis  v.  Sewell 

6i 

,  79 

v.  Hartford  F.  Ins  Co 

42 

Hargreaves  v.  Michell 

35, 

199 

v.  Heflin 

2, 

162,  213 

Hargroves  v.  Cooke 

no 

v.  Kerrison 

11S 

Harker  v.  Conrad 

no 

v.  Johnson 

no 

Harlan  v.  Bernie 

f>5 

v.  Metz 

11,  12 

Harley  v.  Estes 

221 

v.  Myer 

6 

Harlock  v.  Ashberry 

79 

Harsha  v.  Reid 

173 

v.  Jackson 

52 

Hart's  Appeal 

4, 

123,  209 

Harlow  v.  Dehon 

220 

Hart  v.  Boyd                     68, 

88, 

229,  230 

v.  Lake  Superior  Iron 

Co. 

5S 

v.  Church 

276 

Harman  v.  Claiborne 

73 

.  79 

v.  Citizens'  Ins.  Co. 

42 

v.  Gardiner 

266 

v.  Giegg 

266 

v.  Hannah 

266 

v.  Holly 

104 

Harms  v.  Freytag 

72 

v.  Kip 

244 

Harner  v.  Price 

243 

v.  Nash 

75. 

112,  176 

Hi 


STATUTES   OF   LIMITATION. 


SECT. 

Hart  v.  Prendergast  6S,  77,  78,  87 

v.  Ten  Eyck  22 

Harter  v.  Taggart  18S 
Hartford  County  Bank  v.  Waterman 

41,  52,  154,  178 

Hartland  v.  Jukes  124 

Hartley  v.  Wharton  94 

Hartman  v.  Sharp  66 

Hartop  v.  Hoare  21 

Hartpole  v.  Walsh  228 

Harvey  v.  Nat.  L.  Ins.  Co.  11S 

v.  Tobey  86,  137 

v.  Tyler  256 

Harwell  v.  M'Cullock  68,  69 

v.  Steel  252,  281 

Haselden  v.  Whitesides  190,  195 

Haskell  v.  Bailey  222 

Hassinger  v.  Solms  145 

Hastie  :-.  Aiken  212 

Hastings  v.  Mace  256,  273 

v.  Merriam  258 

Hatch  v.  Dana  150 

v.  Hatch  25Q 

v.  Pendergast  265 

v.  Smith  261 

v.  Vermont  Central  R.  R.  Co.    '267 

Hathaway  v.  Haskell  115 

v.  Patterson  118,  125 

Hatter  v.  Ash  54 

Hauff  v.  Howard  201 

Hauselt  v.  Patterson  235 

Haven  v.  Foster  16 

v.  Hathaway  112,  115 

Havens  v.  Bliss  220,  262 

Havlin  v.  Stevenson  7 

Havlock  v.  Jackson  52 

Hawes,  In  re  79 

v.  Shaw  265 

Hawk  v.  Barton  20 

v.  Senseman  257 

Hawkes  v.  Orton  173 

Hawkins  v.  Barney  4,  8,  II,  59 

v.  Campbell  1 1 

.       v.  Hawkins  238,  240,  257 

v.  Hudson  2f7 

t.  Robinson  259 

v.  Savage  6 

v.  State  Loan  &  Trust  Co.  183 

Walker  1 

Hawk-y  v.   Botsford  188 


SECT. 

Hawley  v.  Cramer  21s 

v.  Griswold  115 

v.  Simons  59 
Hawley     Bros.     Hardware    Co.     v. 

Brownstone  282 

Hawse  v.  Burgmire  n 

Hawthorn  v.  Bronson  60 

Haxtun,  Re  188 

Hay  v.  Fisher  16,  30 

v,  Kramer  68,  177,  178 

v.  Peterson  120 

Hayden  v.  Bucklin  58 

v.  Johnson  68- 

v.  Oriental  Mills  400 

v.  Smith  234 

Haydock  v.  Tracy  81 

Haydon  v.  Williams  77,  81,  82, 

84,  87,  89 

Hayes  v.  Bickerstaff  173 

v,  Frey  223 

v.  Goode  199 

v.  Goodwin  141 

v.  St  wart  296 

Haves'  Appeal  2 

Hayman  v.  Keally     6,  58,  194,  200,  215 

Haynes  v.  Boardman  271 

v.  Jones  271 

v.  Rudd  145 

v.  Waite  no 

Haynie  v.  Hall  200,  275 

Hays  v.  Cage  S 

v.  Stone  123 

Hayvvard  v.  Gunn  200,  212 

v.  Kinsey  197 

v.  St.  Louis  400 

Haywood  v.  Ensley  235 

Hazlebacker  v.  Reeves       68,  70,  71,  81 

Hazlet  v.  Critchfield  12 

Head  v.  Head  265 

v.  Manners  64,  68,  69,  190 

v.  Wadham  26 

Healy  v.  Gilman  140 

Hearn  i>.  Cutberth  no 

Heath  v.  Grenell  101,  no,  190 

v.  Page  7 

-■.  Wells  188 

v.  White  259 

v.  Williams  265 

Ilcaton  v,  Leonard  77,  85 

Hebard  v.  Scott  259 


TABLE    OF   CASES. 


liii 


Hebblethwaite  v.  Peever 

35 

Hechi.  v.  Slaney 

218 

Heckeri's  Appeal 

200, 

202 

Heermans  v.  Schmaltz 

256 

Heffernan  v.  Howell 

7 

Heinlin  v.  Castro 

96 

Heisch  v.  Adams 

47 

Heiser  v.  Riehle                     259 

,  261, 

267 

Heiserman    v.    Burlington  C. 

R.  & 

N.  R.  Co. 

252 

Hele  v.  Bexley 

221 

Heller  v.  Cohen 

255 

Hellings  v.  Bird 

256 

v.  Shaw 

65.  63,  70 

Helps  v.  Winterbottom 

119, 

I37« 

Helton  v.  Sciu  jbe 

257 

Hemenway  v.  Gates 

200, 

212 

Hemmenway  v.  Bradford 

20 

v.  Lynde 

222 

Hemming  v.  Zimmerschitte 

203, 

219 

Hemp  v.  Garland 

126 

Hempsted  v.  Cargill 

180 

Henderson's  Case 

60 

Henderson  v.  Baker 

291 

*;  Dodd 

208 

v.  Eason 

24 

v.  Griffin 

259, 

270 

v.  Hamilton 

126, 

151 

v.  Henderson 

24 

v.  Ilsley 

190 

v.  Lewis 

172 

if.  Wadsworth 

IOI 

Hendricks  v.  Comstock 

8 

Hendy  v.  March 

211 

Henley  ;•.  WiJson 

259 

Henly  v.  Lanier 

98 

Hennessey  v.  Stempel 

183 

Henning  v.  Barnett 

182 

Henry  v.  Carson 

240 

v.  Confidence  Gold  M.  Co 

212, 

222, 

223 

v.  Jones 

54 

v.  Root 

68 

v.  Suttle 

60 

v.  Thorpe 

11 

.    I2 

Henton  v.  Paddison 

20 

Hentz  v.  Havemeyer 

I20 

v.  Long  Island  R.  Co. 

6l 

Herbert  v.  Hanrick 

258 

v.  Herbert 

53 

Hercy  v.  Dinwoody 
Herff  v.  Griggs 
Heriot  v.  McCauley 
Hermann  v.  United  States 
Herndon  v.  Pratt 
Hershey  v.  Clark 
Hertle  v.  McDonald 

v.  Schwartze 
Hester  v.  Coats 
Hewer  v.  Cox 
Hewett  v.  Barr 
Hewitt  v.  Rankin 
Heyer  v.  Pruyn  65,  172, 

Heylin  v.  Hastings 
Heynes  v.  Dixon  79, 

Heywood  v.  Marsh 

v.  Perrin 
Hibernia  Bank  v.  O'Grady 
Hibler  v.  Johnston 
Hickling  v.  Hardey 
Hickman  w.  Link 

;•.  Thorny 

v.  Walker 
Hickok  v.  Hickok 
Hickox  v.  Elliott 
Hicks  v.  Brown 

v.  Hicks 

v.  Lusk 

v.  Sallitt 

v.  Thomas 
Hidden  v.  Cozzens 
Higbee  v.  Rice 
Higdon  v.  Stewart 
Higgenbottom  v.  Peyton 
Higginbotham  v.  Fishback 
Higgins  v.  Crawford 

v.  Higgins 

v.  Scott  21,  65, 

v.  Shaw 
Higginson  v.  Mein 
Higgs  7'.  Stimmel 
High  v.  County  Com'rs 
Higham  v.  Rabett 

v.  Ridgway 
Hikes  v.  Crawford 
Hilbery  v.  Ilatton 
Hilbourn  v.  Fogg 
Hill.  Estate  of 
Hill  v.  Bellows 

v.   Boyland 


SECT. 

58,  I99 

256 

142 

54 

41 

265 

201,  235 

58,  202 

259 

245 

295 

221 

222,  223 

65,  I9O 

200,  276 

275 

126 

125,  132 

277 
125 

271 
182 
I9O 
122,  123 
212 
21 
28l 
IO4 
184 

7S 
71.  79 

259,  266 

63 

201 

260 

199,  205 
212 

222,  232 
197 
229 
172 
118 
102 
115 
141 
1S3 
265 

145 

245 

11,  58 


liv 


STATUTES   OF   LIMITATION. 


SECT. 
173 
20 

39 

195 

81,  11S,  124,  131 

221 


Hill  v.  Browne 
v.  Green 
v.  Gregory 
v.  Henderson 
v.  Henry 
v.  Hewitt 
v.  Hilliard 
v.  Jones 
v.  Kendall 
v.  Kricke 
v.  M' Donald 
v.  Meyers 
v.  Perrin 
v.  Phillips 
v.  Phcenix  Ins,  Co. 
v.  Rensselaer  Co.  Supr's 
v.  Robbins 
r.  Robertson 
v.  Saunders 
z.  Simpson 
v.  Soulherland 
v.  Slate 
v.  Walker 
v.  Wilson 
Hillebrandt's  Succession 
Hills  v.  Elliott 

Hillsborough  Co.  v.  Londonderry 
Hilion  v.  Bender 

v.  Duncan 
Hinch  v.  Weatherford 
Hinckley  v.  Fowler 
Hinde  v.  Whitney 
Kindmarsh,  Re 
Hine  v.  Commercial  Bank 
Hines  v.  McKinney 
v.  Potts 
v.  Robinson 
Hinkley  v.  Crouse 

V.  Walters 
I  Iinman  v.  Cranmer 
I  [insdale  v.  Larned 
Hinsdale  v.  Orange  Bank 
I  [inson  v.  Partee 
Hinion  v.  Pritchard 

V.  Townes 
Hintz  v.    I  li'itnas 
Hipwell  v.  Knight 
Iliist  v.  Brooks 
I  lit   hi  o(  k   v.  Harrington 
7\   1. 11  kens 


Hitchin  v.  Campbell 
Hitchings  v.  Morrison 
Hitt  v.  Sharer 
Hiuinger  v.  Eames 
Hoag  v.  Hoag 


SECT. 

177 
263 

145 
180 
265 


4i 
60 

77 

11 
212 
184 

7i 
242 

42 
6 
no 
221 
269 

21 
no 
iSS 

iSS 

259 
71 

35 

19 

255 

153 

11 

35 
6,  251 

18 

183 

183 

7 

259 
256 
281 
259 
177.  179 
20 
236 
212 


265 

55 

118,  124 

7.  221 

19 


Hobari  v.  Connecticut  Turnpike  Co. 

6,  n7,  194 
Hobbs  v.  Ballard  183 

v.  Nat.  Bank  of  Commerce     I,  149 
Hoch's  Appeal  ll 

Hockenbury  v.  Snyder  265    267 

Hocutt  v.  Wilmington  &  W.  R.  Co.    180 


Hodgdon  v.  Chase 
v.  Harris 
v.  While 
Hodge  v.  Manley 
Hodgen  v.  Guttery 
Hodges  v.  Darden 
v.  Eddy 

v.  Tennessee,  &c.  Ins.  Co 
Hodgkins  v.  Farrington 
Hodgson  v.  Bibby 

y.  East  India  Co. 
Hodle  v.  Healey 
Hodsden  z\  Harridge 
Hoester  v.  Sammelmann 
Hoey  v.  Furman 
Hoff  v.  Richardson 
Hoffman  v.  Bechtel 


100,  277. 


137 

33 

190 

278 

58 

6 

261 

236 

269 

919 

173 

68,  235 

33.  78,  190 

60 

269 

6S 

146 


v.  Harrington,  172,  222,  225,  229,  235 
Hogan  v.  Bear 

v.  Kurtz 
Hogg  v.  Ashman 

v.  Gill 
Hoggett  z\  Emerson 
Holberg  v.  Jaffray 
Holcombe  z.  Austell 

v.  Tracy 
Holden  v.  Collins 

v.  Crafts 

v.  James 
Hole  v.  Ritienhouse 
Holladay  v.  Littlepage 
Holland  v.  Chaffin 

v.  Clark 

v.  Dickerson 
Holley  v.  Coffee 
Holliday  v.  Arthur 

v.  Cromwell 
Hollingshead's  Case     6,  58,  79.  197.  229 


68 

6,  251 

6 

182 

8 

86 

269 

n 

259 

123,  209 

12,  54 

258,  261 

137 

96 

118 

11 

8 

236 

269 


TABLE   OF   CASES. 


lv 


Hollingshead  v.  Woodward 
Hollingsworth  v.  Frye 
Hollinhead  v.  Nauman 
liollis  s  Case 
Hollis  v.  Bell 

v.  Hayes 

v.  Palmer  96, 

Hollister  v.  Young 
Holloran  v.  Holloran 
■Holloway  v.  Appleget 

v.  Galliac 
Hollywood  v.  Reed 
Holman  v.  Criswell 
Holmes  v.  Durell 

v.  Grant 

v.  Kerrison  ilS, 

v.  Kjng 

v.  Mackrell 

v.  Pratt 

v.  Seller 

i*.  Smith 

v.  Trout 

v.  Turner's  Falls  Co. 

v.  Weed 

v.  West 

v.  Wilson        457,  458,  459, 
Holt  v.  Gage 
Holton  p.  Whitney 
Holtzapple  v.  Phillibaum 
Holtzman  v.  Douglas 
Homan  v   Lowell 
Home  v.  Semple 
Home  Ins.  Co.  v.  Elwell 

p.  Fallon 

v.  Myer 
Homer  p.  Fish 

v.  Leeds 
Homes  p.  Smith 
Honey  v.  Honey 
Hood  v.  Hood  269, 

v.  Mathias 
Hong  Sling  v.  Royal  Ins.  Co. 
Hooker  v.  Hooker 
Hooper  v.  Atlanta  K.  &  N.  Ry. 

v.  Bryant 

v.  Garner 

v.  Holmes 

v.  Stephens  68,  75, 

v.  Wilson 
Hope  v.  Johnson 


SECT. 

,ECT. 

149 

Hope  Ins.  Co.  v.  Weed 

129 

6O 

Hope  Mutual  Ins.  Co.  v.  Perkins 

129 

259 

v.  Taylor 

129 

35. 

199 

v.  Weed 

129 

235 

Hopkins  v.  Banks 

285 

201 

v.  Calloway 

254, 

272 

105, 

176 

v.  Chambers 

57 

258 

v.  Cockerell 

21, 

232 

257 

z.  Hopkins 

123, 

209 

243. 

276 

v.  Jones 

n 

265 

v.  Robinson 

258 

277 

Hopper  v.  Hopper 

189 

2T9 

p.  Jones 

236 

IOI 

Hoppes  ;'.  Cheek 

173 

236 

Horbach  y.  Miller 

11 

125, 

135 

Horlbeck  r.\  Hunt 

71 

117 

Home  v.  Ingraham 

50 

77,  94 

z.  Planters'  Bank 

no 

no 

Horner  v.  Starkey 

68,  70 

173 

v.  Stillwell 

182 

33 

Horsefield  v.  Cost 

1S3 

7 

Horton  v.  Clark 

1 

235, 

271 

v.  Ronalds 

33 

145 

v.  Seymour 

118 

124 

Horwood  v.  Smith 

21 

460, 

543 

Hoskins  v.  Ames 

259 

86 

v.  Hoskins 

200 

263, 

271 

Hostetter  v.  Hollinger 

86, 

200 

259 

Hough  v.  Bailey     222,  223,  229 

,230 

235 

258 

v.  Richardson 

60 

54 

Houghton  v.  Mann 

139 

25 

7>.  Wilhelmy 

257 

8 

Houseal  v.  Gibbss        122,  200, 

208, 

212 

42 

Houser  v.  Christian 

254 

49 

v.  Irvine 

287 

58, 

274 

Houston  v.  Boyle 

n 

265 

:-.  Emery 

30 

54 

Houx  p.  Batten 

263 

21 

Hovenden  z.  Annesley         58, 

200, 

202, 

270, 

271 

212, 

213, 

275 

265 

Hovey's  Estate,  In  re 

278 

42 

Hovey  p.  Holcomb 

201, 

236 

n 

Howard  v.  Aiken 

212 

Zo. 

294 

v.  Doclitlle 

173 

188 

p.  Hildreth 

176 

229 

259 

v.  Howard 

256 

201 

v.  McCall 

no 

112, 

176 

v.  Maitland 

173 

75 

v.  Reedy 

256 

263 

11 

Howcuit  p.  Bonser 

72,  Sc 

lvi 


STATUTES   OF    LIMITATION. 


Howe  v.  Hathaway 

105 

H 

ulett  v.  Soullard 

145 

v.  Russell 

236 

11 

uling  v.   Kaw  Valley  Ry 

.   & 

Imp 

v.  Saunders 

97 

116,  139 

Co. 

254 

v.  Thompson 

115 

H 

ull  v.  Deally 

6, 

194, 

251 

Howell  v.  Adams 

140,  142 

v.  Vermont,  &c.  R.  R. 

Co. 

250 

v.  Ashmore 

265 

v.  Wilson 

261 

v.  Hair 

183,252 

H 

ull,  Mayor  of,  v.  Hornet 

2C 

.  52, 

270 

v.  Howell 

11,  12 

11 

uls  v.  Buntin 

260 

v.  Johnson 

280 

H 

ultslander  v.  Thompson 

292 

v.  Leavitt 

238 

H 

umbert  v.  Trinity  Churc 

h,  58 

,252 

, 

v.  Young 

6, 

178,  179 

256. 

259. 

274 

Howes  v.  Austi 

1Q 

H 

ume  v.  Beale 

60, 

200 

Howland  v.  Cuykendall 

119,  129 

11 

umphrev  v.  Carpenter 

59 

v.  Edmonds 

118, 

129,  150 

v.  Clearfield  Co. 

200 

v.  Newark  Cemetery 

Assoc.        268 

v.  Hurd 

225 

v.  Rench 

no 

v.  Persons 

7 

v.  Shurtleff              172 

222, 

225,  229 

II 

umphreys  v.  Jones 

87 

Hoyt  v.  Dillon 

256 

v.  Mai  toon 

252, 

276 

v.  Latham 

60 

It 

umphries  v.  Huffman 

257 

v.  Reed 

133 

H 

unnicutt  v.  Peyton 

258, 

261 

v.  Wilkinson 

20 

Hunt,  Appellant 

142 

Hubbard  v.  Austin 

259 

H 

unt  v.  Allen 

173 

v.  Kiddo 

259 

v.  Bourne 

259 

v.  Marsh 

18S 

v.  Brigham 

"5 

v.  Wood 

259 

v.  Ellison 

59 

Hubbell  v.  Coudrey 

7.  16,  30 

v.  Holden 

55 

v.  Sibley 

58,  224 

v.  Holly 

97 

Huber  v.  Steiner 

8,  194 

v.  Jetmore 

7 

Hudnal  v.  Wilder 

20S 

t:  Spaulding 

282, 

292 

Hudson  v.  Carey 

68,  73 

v.  Taylor 

130 

v.  Hudson 

6,  251 

v.  Ward 

149 

v.  Hulbert 

188 

v.  Wickliffe 

58 

v.  Isbell 

236 

H 

unter  v.  Baxter 

1S8 

v.  Putney 

256 

v.  Chrisman 

256, 

262, 

263 

v.  Wheeler 

7.  265 

v.  Hunter 

276 

Huger,  In  re 

188,  278 

v.  Kittridge 

6S 

,  72 

Hugh  v.  Jones 

274 

v.  Nockolds 

19c, 

Hughes  v.  Blackwell 

176,  229 

v.  Parsons 

260 

v.  Boone 

101 

v.  Robertson 

101 

v.  Clarksville 

265 

v.  Spoiswood 

200 

v.  Edwards              172 

222, 

229,  235 

v.  Waldron 

25 

v.  Farrar 

6 

II 

untington  v.  Babbitt 

190 

v.  Hughes 

172, 

200,  208 

v.  Ballou 

288 

v.  Litrell 

117 

v.  Chesmore 

79 

v.  Paramore 

92 

v.  Mather 

233 

v.  Smithers 

280 

II 

intley  v.  Sanderson 

136 

v.  Wheeler 

20 

H 

untress  v.  Patton 

146 

v.  Winn 

195 

II 

urd  v.  Brisner 

259 

1 1         :iin  v.  Baseley 

279 

v.  Coleman 

225 

11  albert  v.  Clark 

65 

II 

arlbert  v.  Clark 

21 

TABLE   OF   CASES. 


lvii 


SECT. 

SECT_ 

Hurley  v.  Estes 

223 

Irish  Land  Com.  v.  Junkin 

30 

Hursh  v.  North 

141 

Irvine  v.  Adler 

263 

Hurst  v.  Parker 

66,  68,  178 

v.  Grady 

123 

Hussey  v.  Burgwyn 

106 

ii5.  279 

v.  Wood 

179 

z-.  Kirkman 

58,  79,  86 

Irving  v.  Veilch       81,  87,  114 

119 

137 

Hutchings  v.  Lamson 

8 

Irwin  v.  Lloyd 

294 

Hutchins  v.  Gilman 

123,  142 

v.  Paulett 

no 

Hutchinson  v.  Chase 

266 

Isaac  v.  Clarke 

265 

v.  Hutchinson 

200,  208 

v.  Swift 

295 

v.  Liverpool,  &c.  Ins. 

Co. 

5r 

Ivey  v.  Owens 

21 

177 

v.  Pratt 

277 

Hutton  v.  Brown 

125 

J- 

Hyatt  v.  Mattingly 

256 

Jacks  v.  Moore 

7 

Hyde  v.  Dillaway 

222,  225 

Jackson  v.  Andrews 

259 

v.  Johnson 

79.  94 

v.  Bailey 

no 

Hydeville    Co.   v.    Eagle 

R. 

R.    & 

v.  Bard 

260 

Slate  Co. 

19,  26 

v.  Berner 

258 

260 

Hyman  v.  Bayne 

11 

v.  Brink 

256 

266 

v.  Gray 

123,  209 

v.  Brooks 

289 

290 

Hysinger  v.  Baltzell 

245 

v.  Buchanan 
v.  Burke 

276 
no 

I. 

v.  Cairns 

259 

Ibert,  In  re 

294 

v.  Camp                   255,  256, 

259. 

260 

Idding  v.  Cairns 

270 

v.  Davis 

270 

Her  v.  Routh 

258 

v.  Delancey 

173. 

225 

Ilett  v.  Collins 

7 

v.  Ellis 

258 

lilies  v.  Fitzgerald 

175 

v.  Fairbanks 

71, 

285 

Illinois  Steel  Co.  v.  Bilot 

256 

257,  258 

v.  Frost                            256, 

259. 

260 

Ilsley  z.  Jawett          65,  68 

96, 

112,  115 

v.  Halstead 

255 

Imperial  Gas  Light  Co.  v 

.  London 

v.  Hardenburgh 

257 

Gas  Co. 

274 

v.  Harder 

256 

Inches  v.  Leonard 

172,  229 

v.  Harper 

265 

Indianapolis  v.  Patterson 

237 

v.  Haviland 

259 

Indianapolis,  &c.  R.  Co.  v 

Ro 

ss      258 

v.  Hinman 

265 

Ingersoll  v.  Kirby 

54 

v.  Hitt 

194 

v.  Lewis 

270 

v.  Hotchkiss 

260 

Ingle  v.  Richards 

189,  199 

v.  Howe 

256 

Inglis  v.  Haigh 

2,  16 

v.  Hudson 

173- 

259 

v.  Hay 

24 

v.  Ingraham 

259. 

260 

Ingraham  v.  Baldwin 

172,  265 

v.  Jawdin 

258 

v.  Regan 

243 

v.  Johnson                            6, 

259. 

260 

Ingram  v.  Ashmore 

25 

v.  Joy 

258, 

270 

v.  Little 

265 

v.  Leek 

265 

v.  Sherard 

277,  278 

v.  Lodge 

221, 

236 

Insurance  Co.  v.  La  Croix 

42 

v.  Lunn 

250 

International,     &c.     R.    R 

C 

D.      V. 

v.  M' Master 

265 

Pape 

Il8 

K.  Matsdorf 

201 

Interstate   Building   Assoc 

.      V 

Go- 

v.  Moore 

271 

forth 

86 

v.  Nason 

30 

Irby  v.  M'Crea 

35.  199 

v.  Newton 

259 

.•Ill 


STATUTES   OF   LIMITATION. 


SECT. 

Jackson  v.  Oltz 

259 

v. 

Parker 

260 

v. 

People 

7i 

v. 

Pierce 

176,  222 

V. 

Porter 

256,  259 

V. 

Pratt 

173,  220. 

V. 

Ramsbotham 

265 

V. 

Richards 

262 

V. 

Robins 

240 

V. 

Rogers 

260 

V. 

Rowland 

265 

V. 

Sackett 

21,  65,  172 

v.  St.  Paul  F.  &  M.  Ins.  Co.          42 

v.  Schoonmaker  255,  257,  259,  269 

v.  Sellick  259 

z.  Sharp  256,  258,  260 

v.  Slater  225 

v.  Smith  256,  259 

-j.  Stacey  182 

v.  State  13 

1:  Stephens  258 

v.  Stiles  265 

v.  Thomas  256,  258,  260 

v.  Van  Valkenburgh  54 

v.  Varick  7 

v.  Vermilyea  259,  261 

v.  Waters  256,  258,  259,  260 

v.  Wheat  6,  251,  258,  259 

v.  Whedon  265 

v.  Willard  221 

v.  Wood  172,  229,  270 

v.  Woodruff  255,  259,  262 

Jacobs  v.  Graham  54 

v.  Phillips  203 

v.  Scales  77 

JacqueU-.  Jacquet  199,  205 

Jaffrey  v.  Bear  5S 

Jager  z.  Vollinger  124,  224 

Jagger  Iron  Co.  v.  Walker                   149 

James  v.  Atlantic  Delaine  Co.  59 

v.  Fulcrod  201 

v.  Life  15 

Jameson   z.  Jameson  118,  124 

Jamison  v.  Perry  221 

Janes  v.  Buzzard  20,  21 

v.  Patterson  259 

Jarvis  v.  Albro  229,  230 

r.  Jarvis  11 

v.  Pike  7 

z.  Woodruff  222 


SECT. 

Jay  v.  Johnstone  35 

v.  Thompson  11 

Jayne  v.  Mickey  123 

Jefferies  v.  Sheppard  123 
Jeffersonville,    &c.     R.    R.    Co.    v. 

Oyler  260 

Jeffries  v.  Butler  259 

Jeffryes  v.  Evans  173 

Jenckes  v.  Cook  265 

Jencks  v.  Alexander  no 

v.  Quidnick  Co.  58 

Jenkins  v.  Boyle  68,  89 

v.  Dawes  139 

v.  Hammarschlag  59 

v.  Pye  60 

v.  Thompson  25 

Jenks  v.  Shaw  245 

Jenner  v.  Tracey  222 

Jennings  v.  Browder  188 

Jerald  v.  Elly  173 

Jessup  v.  111.,  &c.  R.  R.  Co.  60 

Jett  v.  Hempstead  122,  123 

Jewell's  Succession  72 

Jewell  v.  Schroeppel  25 

Jewettz/.  Fisher  173 

v.  Greene  289 

v.  Partridge  183 

v.  Petit  96,  105 

Jpx  v.  City  of  New  York  7 

Jilson  v.  Gilbert  120 

John  v.  Hock  54 

Johns  v.  Fenton  117,  273 

v.  Lantz  68,  69,  70 

v.  McKibben  258 

Johnson  v.  Albany  &  Susquehanna 

R.  Co.  65 

v.  Bank  of  Lake  150 

v.  Bank  of  North  America  140 
v.  Beardslee                    190,  285,  287 

v.  Bounethea  72 

v.  Diversey  59 

v.  Dougherty  201 

v.  Evans  68 

v.  Farmers'  Bank  17,  142 

v.  Farwell  289,  291 

v.  Gorham  256 

v.  Green  41 

v.  Humboldt  Ins.  Co.  42,  50 

v.  Huston  236 
V.  Johnson            58,  60,  68,  no,  235 


TABLE   OF   CASES. 


lix 


Johnson  v.  Liversedge 

v.  Lloyd 
v.  Mason 
v.  Mcintosh 
v.  McMillan 
v.  Mounsey 
v.  Overman 


SECT. 
259 
267 
265 
259 
259 
222 
206 


v.  Prosperity  L.  &  B.  Assoc.       236 

v.  Railroad  Co.  11 

v.  Robbins  no 

v.  Rutherford  152 

v.  Sherman  236 

v.  Smith  163,  200,  215 

v.  Star  20 

v.  Stockton  172 

v.  Thoroughgood  182 

v.  Tuolumne  266 

l    White  183 

v.  Wren  6,  117,  194 

Johnston  v.  Gill  6 

v.  Houston  221 
v.  Humphreys          19,  123,  190,  200 

v.  Irwin  256,  269 

v.  Nash  271 

Johnstone  v.  Mining  Co.  58 

Joiner  v.  Borders  269 

Jolliffe  v.  Pitt  6,  194. 

Jolly  v.  Arbuthnot  221 

Jones  v.  Ashford  146 

v.  Brodie  190 

v.  Conoway  58,  119,  274 

v.  Eisler  n8,  133 

v.  German  Ins.  Co.  1,  n 

v.  Goodwin  208 

v.  Harraden  20 

v.  Hays  8 

v.  Hoar  1,  177 

v.  Home  Savings  Bank  200 

v.  Hook  8,  65 

v.  Hughes  91 
v.  Jones    8,  10,  68,  105,  183,  194,  236 

v.  Lemon  6 

v.  Lewis  120,  141 

v.  Lighlfoot  119,  151 

v.  Lowe  35 

v.  McDermott  200 
v.  Moore                       68,  70,  72,  igo 

v.  Nelson  6 

v.  Nicoll  124 

v.  Perkins  40a 


SECT. 

Jones  v.  Person 

200,    212 

v.  Pharr 

188 

v.  Planters'  Bank 

54 

v.  Pope 

33 

v.  Porter 

258 

v.  Powning 

193 

v.  Reeves 

240 

v.  Ridley 

258 

v.  Shattuck 

208 

v.  Smith 

21,    22 

v.  Strickland 

276 

v.  Trimble 

151 

v.  Turberville 

199,  205,  253 

v.  Wetherbee 

266 

v.  Williams 

no,  221,  258 

v.  Withers 

32 

v.  Woods 

119 

Jordan  v.  Adams 

145 

v.  Hubbard 

73,  79 

v.  Jordan 

1 

v.  Robinson 

34 

v.  Thornton 

6,  183,  251 

v.  Twells 

173 

Jordon  v.  Fenno 

236 

Jorgensen  v.  Kingsley 

2S0 

Joseph  v.  Baker 

123 

Joslyn  v.  Smith 

104,  285 

Josselyn  v.  Stone 

52 

Journeay  v.  Gibson 

11 

Joy  v.  Adams 

21,  65 

Judah  v.  Brandon 

5S 

v.  Dyolt 

123,  209 

Judd  7'.  Fulton 

54 

v.  Sampson 

278 

Judge  v.    Barnes 

260 

Judge  of  Probate  v.  Brooks  58 
Julien  v.  Hoosier  Drill  Co.  61 
Junior  Steam  Engine  Co.  v.  Doug- 
lass 137 
Justice,  &c.  v.  Orr  141 


K. 

Kahn  v.  Crawford 
Kalheim  v.  Harrison 
Kallenbach  v.  Dickinson 
Kampshall  v.  Goodman 


72 

235 

285,  287 

68 


Kane  v.  Bloodgood        32,  58,  59,  68, 

200,  202,  205,  212,  215 

v.  Cook  209 

Kane  County  v.  Herrington  58 


lx 


STATUTES   OF   LIMITATION. 


SECT. 

Kansas  R.  R.  Co.  v.  Mihlman  180 

Karnes  v.  American  Fire  Ins.  Co.       42 

Karver  v.  James  190 

Kathau  v.  Rockwell  266 

Keaton  v.  Greenwood  212 

v.  McGwier  58,  59,  212 

Keech  v.  Hall  221 

Keefer  v.  Zimmerman  175 

Keen  v.  Deardon  200,  203 

Keenan  v.  Keenan  77 

Keene  v.  Collier  142 

Keener  v.  Krull  68 

Keeton  v.  Keeton  6,  251 

Keil  v.  Healey  6,  251 

Keim  v.  Home  Ins.  Co.  42 

Keith  z.  Estell  30 

Keither  v.  Foster  118,  125 

Kellar  v.  Sinton  222 

Keller  v.  Dillon  267 

v.  Jackson  277 

Kelley  v.  Gallup  6,  ir 

v.  New  York  180 

Kellog  v.  Wilson  60 

Kellogg  v.  Dickinson  76,  224 

v.  Thompson  180 

v.  Wood  173,  222 

Kellum  v.  Smith  236 

Kelly  v.  Foster  41 

v.  Gilman  55 

v.  Hooper  188 

v.  Mills  201 

v.  Sanborn  68,  73,  285,  287 

Kemp  v.  Westbrook  22 

Kempe  v.  Bader  245 

Kendal  v.  Slaughter  251 

Kendall  v.  Kingsley  54,  124 

v.  United  States  6,  7,  252 

Kendrick,  Re  68,  79,  188 

Kennebeck  Purchase  v.  Laboree      256, 

259 

v.  Springer  256,  258 

K  en  nebunk  7/.  Smith  53 

Kennedy's  Appeal  188 

Kennedy  v.  Carpenter  133,  136 

v.  Georgia  State  Bank  213 

v.  Knight  222 

v.  I-.'iconley  52 

Reynolds  270 

V.  Winn  200 

K    nn-tt  v.  I'lummtr  221 


SECT. 

Kenney  v.  Lee  289 

Kenosha  v.  Lamson  127 

Kensington  Bank  v.  Patton  68,  73 

Kent  :'.  Dunham  35,  199 

v.  San  Francisco SavingsUnion  294 

v.  Welch  174 

Kentucky  Bank  v.  Wister  17,  142 

Kepley  v.  Scully  271 

Keplinger  v.  Griffith  70 

Kerby  v.  Jacobs  59 

Kerndt  v.  Porterfield  235 

Kerns  v.  Schoonmaker  184 

Kerper  v.  Wood  211 

Kerr  v.  Shaw  173 

Kerrison  :\  Williams  21 

Kershaw  v.  Kelsey  6 

Kervvin  v.  Sabin  245 

Ketterman  y.  Dry  Fork  R.  Co.  294 

Key  v.  McCleary  236 

Keyser's  Appeal  6 

Keyser  v.  Evans  266 

Key  West,  The  27 

Kibble  v.  Fairthorne  35 

Kidd  v.  Temple  221 

Kiddall  v.  Trimble  273 

Kidder  v.  Houston  239 

v.  Rixford  24 

Kilbourne  v.  Lockman  11 

Kile  v.  Tubbs  259 

Kilgour  v.  Finlyson  211 

Kille  v.  Ege  260,  270 

Killian  v.  Watt  240 

Killips  v.  Putnam  Ins.  Co.  49 

Killough  v,  Hinton  59 

Kilpatrick  v.  Sisneros  259 

Kimball  v.  Brown  277,  278 

v.  Com'th  Ave.  Ry.  Co.  266 

v.  Cunningham  20,  25 

v.  Fuller  132 

v.  Hamilton  Fire  Ins.  Co.  44 

v.  Ives  60,  204 

v.  Ladd  258 

v.  Lamson  55 

v.  Morton  201 

v.  Whitney  30 

Kimble  v.  Cummins  145 

Kimborough  v.  Smith  236 

Kimbro  v.  Fulton  Bank  11 

Kimm  v.  Osgood  54 

Kimmel  v.  Schwartz  65,  66,  69 


TABLE   OF   CASES. 


Ixi 


SECT. 

Kincaid  v.  Archibald 

94 

v.  Dwindle 

149 

v.  Ind.  Nat.  Gas  Co. 

61 

Kincheloe  v.  Tracewells 

256 

King  v.  Andrews 

no 

v.  Baxter 

7 

v.  Beeston 

26 

v.  Carmichael 

237 

v.  Coulter 

282 

v.  Davis                             68, 

278, 

2S0 

v.  Dennison 

1 99 

v.  Eddingion 

221 

v.  Hannah 

136 

v.  Jones 

173 

v.  King 

282 

v.  Lane 

8 

v.  Mackellar 

117 

118 

v.  Merritt 

259 

v.  Milsam 

21 

v.  Morford 

60 

v.  Morrall 

52 

v.  Mosely 

188 

v.  Murray 

265 

v.  Rice 

154 

v.  Riddle 

72,  80 

v.  Smith 

259. 

271 

v.  State  Bank 

290 

v.  Si.  Michael's 

221 

v.  Studebaker 

I46 

v.  Tirrell 

II 

v.  Townshend 

255 

v.  Watertown  F.  Ins.  Co. 

42 

Kingdom  v.  Nottle 

173 

Kingham  v.  Robins 

I07 

Kingman  v.  Hotaling 

20 

v.  Kingman 

172, 

I99 

Kingsbury  v.  Butler 

124 

Kingsley  v.  Delano 

278 

Kingsmill  v.  Bull 

182 

Kingston  Bank  v.  Eltinge 

20 

Kinkead  v.  Holmes  &  B.  F.  Co. 

183 

Kinna  v.  Smith 

60, 

172 

Kinney  v.  Doe 

265 

v.  McClure 

122 

Kinsell  v.  Daggett 

258 

Kinsey  v.  Heyward 

I90 

Kinsloe  v.  Baugh 

115 

Kinsman  v.  Cambridge 

11,  12 

v.  Rouse 

6 

v.  Wright 

139 

Kipping  v.  Demint 
Kirby  v.  Hanksaker 

v.  Lake  Shore  &  R.  R.  Co 

v.  Mills 
Kirk  v.  Hartman 

v.  Smith 
Kirkland  v.  Krebs 
Kirkman  v.  Hamilton 

v.  Philips 

v.  Siboni 
Kirkpatrick  v.  Davidson 
Kisler  v   Sanders 
Kistler  v.  Hereth 
Kile  v.  Brown 

Kittredge  v.  Locks  &  Canals 
Klauber  v.  Biggerstaff 
Kline  v.  Guthart 

v.  McGuckin 
Kluge  v.  Lachenor 
Knapp  v.  Clark 

v,  Hanford 

z.  Marlboro 
Kneeder  v.  Norton 
Knellar  v.  Lang 
Knepper  v.  Kurtz 
Knight  v.  Brawner  35 

v.  Clements 

v.  Cunningham 

v.  Macomber 

v.  Taylor 
Knipe  v.  Knipe 
Knott  v.  Farren 
Knotts  v.  Butler 
Knowlton  v.  Walker     222,  224, 

v.  Watertown 
Knox  v.  Cleveland 

v.  Gye 

v.  Hook 

v.  Jenks 
Knox  County  v.  Aspinwall 

v.  Manhattan  El.   R.  Co. 
Koch  v.  Melhorn 
Kohlheim  v.  Harrison 
Koons  v.  Steele 
Korn  v.  Browne 
Kortz  v.  Carpenter 
Koshkonong  v.  Burton 
Kraft  v.  Thomas 
Kramph  v.  Hatz 
Krause  1.  Dorrance 


SECT. 

199 
173 

275 

79 

25 

259,  260 

6 

25 

183 

7 

201 

79 

6 

261 

266 

142 

79 

221 

265 

19 

20,  35 

173 

275 

255 

173.  174 

,  58,  199 

116,  287 

199 

30 

60 

277 

69 

145 

225.  235 

289 

I,  n,  14 

210 

260 

270 

127 

61 

146 

225 

270 

11 

173 

127 

118,  124 

146 

122,  123 


Ixii 


STATUTES    OF    LIMITATION. 


Krebs  v.  Olmstead 
Krehl  v.  Burrell 
Krone  v.  Krone 
Krueger  v.  Krueger 
Kruse  v.  Wilson 
Kulp  v.  Kulp 
Kutz's  Appeal 
Kutz  v.  Fleisher 
Kyger  v.  Ryley 
Kyle  v.  Wells 


Labeaume  v.  Sweeney 
Lackey  v.  Lackey 
Lacon  v.  Briggs 

v.  Davenport 

v.  Hooper 
Laduc  v.  Seymour 
Lady    Washington     Cons. 

Wood 
La  Farge  v.  Jayne 
Lafferty  z>.  Turley 
La  Frombois  v.  Jackson 
Lagovv  v.  Neilson 
Lainson  v.  Tremere 
Lake  v.  Thomas 
Lake's  Trusts,  Re 


SECT. 

77,  84 
60 
11 
69 

259.  271 
194,  221 
200,  240 

277 

"5,  223 

79 


145 
210 

65 
24 

55 
25 


Co. 


276 

77,  118 

35,  199,  200 

259,  260 

294 

265 

225,  226 

16 


Lakin  v.  Sierra   Buttes  Gold  Mine 

Co.  212 

Lallande  v.  Brown  280 

Lamar  v.  James  222,  225 

v.  Pearre  259 

Lamb  v.  Clark  21,  177 

••/.  Foss  259 

v.  Walker  180 

Lambert  v.  Schmalz  77 

v,  Taylor  52 

Lamberton  v.  Grant  11 

Lamine  v.  Dorrell  177 

Laming  v.  Laming  173 

Lammar  v.  Stoddard  212 

I.  mison  v.  Schuit  188 

hire  z.  Glover  173 

v.  Mason  265 

Lan    ister  County  v.  Brinthall  53 

Lan    ister  Co.  Bank  v.  Smith  142 

Lance  v.  Parket  68,  1  [9 

t.  Maine  Central    R.  R.  Co. 

277,  2S0 

Lander  v.  Rounsaville  260 


SECT. 

Landes  v.  Roth  68,  86 

v.  Saxton  125 

Landis  v.  Home  Mut.  Ins.  Co.  45 

Lands  Allotment  Co.,  In  re        200,  276 

Landry  v.  Landry  237 

Lane  v.  Bank  of  the  Metropolis         247 

v.  Dickerson  236 

v.  Doty  145 

v.  Ewing  201 

v.  Gould  255 

v.  Kennedy  '  53,  267* 

v.  Levillian  146' 

v.  Nelson  11 

v.  Richardson  88 

Lane  &  Bodley  Co.  v.  Locke  59 

Lang  v.  Gage  97 

v.  Phillips  54 

v.  Steiger  201 

Langdon  v.  Bowen  no 

v.  Buel  233 

v.  Castleton  121 

v.  Potter  261 

v.  Roane  280 

Lange  v.  Carrutheis  77,  86 

Langford  v.  Selmes  265 

Langham  v.  Baker  188 

Langley  v.  Fisher  275 

Langvvorthy  v.  Myers  267 

Lanning  v.  Lovering  173 

Lansdale  v.  Smith  60,  200,  213 

Lansdell  v.  Gower  32 

Lansing  v.  Starr  58,  68 

Lant  v.  Manley  20a 

Lapham  v.  Briggs  139 

Lapsley  v.  Brashears  n 

Larason  v.  Lambert  102,  118,  124 

Lark  v.  Cheatham  277,  278 

Larman  v.  Hoey  266 

Larson  v.  Aultman  &  Taylor  Co.      250 

Lash  v.  Von  Neida  2 

Lathrop  v.  Snellbaker  179 

Latimer  v.  Trowbridge  245 

La  Tour  v.  Barclay  68 

Latourette  v.  Cook  30 

Lattin  v.  Gillette  20,  289 

Laurence  v.  Hopkins  68,  69,  70,  73 

Law  ?'.  Allen  223 

v.     New     England     Mut.    Ace. 

Assoc.  42 

v.  Patterson  26C 


TABLE    OF   CASES. 


lxiii 


Lawley  v.  Hooper 
Lawly  v.  Lawly 
Lawrence  v.  Bassett 

r.  Carter 

v.  Harrington 

v.  Miller 

v.  Norreys 

v.  Rokes 

v.  Trustees 

v.  Worrell 


SECT. 
228 
200 

8 
20 

97 
265 

274,  275 
60 

59 
68,  71 

Lawrence  University  v.  Smith  123 
Lawson  v.  Blodgett  212 
v.  McCartney  68,  86 
Lawton  v.  Waite  11 
Lay  v.  Mechanics'  Bank  188 
Layton  v.  State  23S,  251 
Lazarus  v.  McGuirk  276 
Lea  v.  Polk  Co.  Copper  Co.  259,  271 
Leach  v.  Asher  101 
v.  Leach  21 
Leahy  v.  De  Moleyns  •  218,  259 
Leakey  v.  Gunter  201 
Leaper  v.  Tatton  65,  68,  71,  81,  87 
Leard  v.  Leard  7 
Leather  Manuf.  Nat.  Bk.  v.  Mer- 
chants' Nat.  Bk.  140 
Leavenworth     Com'rs     v.  Higgin- 

botham  105 

Lechmere  v.  Fletcher  68,  94,  107 

Lee  v.  Brown  199 

v.  Butler  22 

v.  Cassin  124 

v.  Forman  145 

v.  Gause  117,  194 

v.  Horton  119 

v,  Linthicum  68 

v.  Norris  52 

v.  Polk  68,  71 

v.  Wilmot  69,  78 

v.  Wyse  68 

Leeds  Lumber  Co.  v.  Haworth     171,221 

Leef  v.  Goodwin  no 

Leeming  v.  Skirrow  265 

Lefavour  v.  Homan  266 

Leffingwell  v.  Warren  40tf,  252 

v.  White  55 

Legare  v.  Fraser  123 

Le  Gendre  v.  Byrnes  60,  200 

Legg  v.  Horn  256 

Leggett  v.  Coffield  58 


Lehigh  Coal  &  Nav.  Co.  v.  Blakeslee  155 

Leigh  v.  Jack  256 

v.  Linthecum  69,  86 

v.  Thornton  16 

Leiman,  Re  202 

Leman  v.  Newham  229 

Lemoine  v.  Dunklin  County  276 

Lenharl  v.  Ream  240 

Lenoir  v.  South  259 

Lent  v.  Shear  223,  230 

Lentz  v.  Teulonia  F.  Ins.  Co.  42 

Leonard  v.  Hughlett  105 

v.  Leonard  271 

v.  Olson  125 

v.  Pitney  165,  252,  274 

v.  United  States  79 

Le  Roux  v.  Brown  8 

Le  Roy  v.  Ciowningshield  8 

Lesem  v.  Neal  154 

Lesley  v.  Nones  172 

Lester  v.  Garland  54 

v.  Jenkins  291 

v.  Pickford  216 

v.  Redmond  34 

Lethbridge  v.  Chapman  6,  190 

Lethieullier  v.  Tracy  200 

Levasser  v.  Washburn  52 

Lever  v.  Lever  123,  209 

Levering  v.  Rittenhouse  281 

Levettenham  v.  Leary  257 

Levine  v.  Taylor  6 

Levy  v.  Boas  8 

v.  Cadet  210,  285,  287 

v.  Chicago  Nat.  Bank  54 

v.  Stewart  6 

Levystein  v.  Whitman  no 

Lewes  v.  Thomas  275 

Lewey  v.  Fricks  Coke  Co  178,  275 

Lewis  v.  Alexander  7 

v.  Bacon  68 

v.  Baird  60 

v.  Broadwell  117 

v.  Brooks  60 

v.  Castleman  205 

v.  Duncombe  199 

v.  Glenn  150 

v.  Great  Western  Ry.  Co.  51 

v.  Hawkins  65,  200,  223,  235 

v.  Hyams  23 

v.  Marshall                 .  52 


lxiv 


STATUTES   OF   LIMITATION. 


Lewis  v.  Morland 

v.  Pleasants 

v.  Robards 

v.  Schwenn 

v.  Webb 

v.  Welch 
Lexington  v.  Butler 

v.  Lindsay 

v.  Ohio  R.  R.  Co. 


SECT. 

i/8 
258 
236 
224 
12 
276 
127 
200 
215 


Lexington,  &c.  R.  R.  Co.  v.  Bridges  200 

Ley  v.  Peter  235,  270 

Libbett  v.  Maultsby  11 

Libbey  v.  Young  259 

Libby  v.  Robinson  68,  79 

Lichty  v.  Hugus  16,  121 

Lickbarrovv  v.  Mason  21 

Lidiard's  Contract,  In  re  41 

Lieberman  v.  First  Nat.  Bank  275 

Life  Assoc,  v.  Cook  221 

Lillie,  The  27 

Lillie  v.  Hoyt  123 

Lilly  v.  Commissioners  142 

Limerick  v.  Voorhis  222 

Lincoln  v.  Baltelle  10 

v.  Purcell  119 

Lincoln  Academy  v.  Newhall  139 

Lincoln  Co.  v.  Lunning  127 

Lindley  v.  Sharp  236 

Lindsay  v.  Hyatt  58,  200 

v.  Jamison  68 

Lindsey  v.  Miller  52 

Lindsley  v.  Dodd  200 

Lingan  v.  Henderson  58,  223,  232 

Link  v.  Doerfer  256 

v.  McLeod  155 

Linsell  v.  Bonsor  85,  97,  102 

Linton  v.  Allen  173 

Litchfield  v.  Ready  221,  259 

Litter  v.  Smiley  141 
Little  v.  Blunt            54,  66,  81,  118, 

124,  245,  280 

v.  Downing  239,  267 

v.  Edwards  79 

V.  Harvey  295 

v.  McVey  8,  30 

v.  Morgan  35 

Lillledale  v.  Liverpool  College  256 

Liltlefield  v.  Littlefield  101 

Littlejohn  v.  Gordon  232 

Littler  v.  Smiley  120,  141 


SECT. 

Littleton  v.  Patterson  273 

Lively  v.  Ball  265 

Livermore  v.  Johnson  276 

v.  Rand  no,  277 

Livingston  v.  Cochran  273 

v.  Pendergast  259,  260 

v.  Peru  Iron  Co.  259,  261 

v.  Salisbury  Ore  Bed  60 

v.  Story  275 

Llewellyn  v.  Williams  54 

Lloyd  -.v.  Ball  259 

v.  Currin  200 

v.  Maund  68,  71 

v.  Tomkies  173 

L.  O.  A.  &  N.  Y.  R.  Co.  v.  Mason     150 

Locke  v.  Armstrong  60 

v.  Caldwell  59,  223 

v.  Hardeman  273 

v.  Palmer  188 

Lockey  v.  Lockey  24,  58,  200 

Lockhart  v.  Eaves  68 

v.  Fessenich  243 

v.  Yeiser  n 

Lockwood  :-.  Ewer  22 

v.  Lockwood  222 

v.  Thorn  2S0 

v.  Walker  265 

Loewer  v.  Haug  101 

Loftin  v.  Aldridge  73 

Logan  v.  Mason  no 

Logansport  v.  Uhl  61 

Lokerson  v.  Stillwell  236 

Lomax  v.  Pendleton  171 

Lombard  v.  Pease  73 

London  v.  Goree  19 

v.  Lyman  270 

London   &   San  Francisco  Bank   v. 

Pirrott  20 

Long  v.  Greville  68,  107 

v.  Kansas  City  Stock  Yards  Co.  256 

v.  Miller  101 

v.  White  5S 

v.  Young  267,  270 

Longfellow  v.  Longfellow  265 

Longhursi  v.  Star  Ins.  Co.  42 

Longuet  v.  Seawen  228 

Longstreet  v.  Brown  235 

Longvvorth  v.  Hunt  275 

v.  Taylor  60,  219,  222 

Lonsdale  v.  Brown  68,  81 


TABLE   OF   CASES. 


lxv 


Lonsdale  v.  Cox 

Loomis  v.  Decker 

Lord  v.  Bigelow 

v.  Harvey 

v.  Morris 

v.  Shaler 


SECT. 

145 

68,  70,  79 

16 

64,  68 

41,  222 

3,  70,  71.  77,  81,  123 


Lord  Cromwell's  Case  22 

Lord  Selsey  v.  Rhodes  81 

Lorent  v.  South  Carolina  Ins.  Co.       54 

Loring  v.  Boston  11 

v.  Groomer  173 

v.  Gurney  124 

v.  Hailing  55 

v.  Palmer  200 

v.  Whittemore  26 

Lorrillard,  In  re  72 

Lot  v.  Thomas  173 

Loit  v.  De  Graffenreid  275 

Louisville  Bank  v.  Gray  118 

Louisville,   Evansville   &   St.    Louis 

R.  Co.  v.  Clarke  179 

Louisville  &  N.  R.  Co.  v.  Pittman     187 

Lounsbery  v.  Snyder  173 

Love  v.  Dennis  265 

v.  Edmoston  265 

v.  Hackett  105 

v.  Hough  77 

v.  Watkins  219 

Loveland  v.  Davidson  8 

Lovell  v.  Bellows  17S 

Lovett,  Re  195 

v.  Church  221 

Low  v.  Allen  222 

v.  Low  200 

Lowber  v.  Smith  278 

Lowe  v.  Carpenter  182 

v.  U.  S.  Mut.  Ace.  Assoc.  42 

v.  Watkins  200 

Lovvery  v.  Gear  no 

Loiveth  v.  Fothergill  65 

Lowis  v.  Rumney  188,  189 

Lowndes  v.  Anderson  21 

v.  Pinckney  145 

Lovvrey  v.  Lawrence  289 

v.  Robinson  86 

Lowry  v.  Dubose  68,  69,  70 

v.  Polk  County  142 

Lowther  v.  Chappell  116,  285,  2S7 

Lucas  v.  Brooks  265 

v.  Daniels  212 


Lucas  v.  Dennison 
v.  Jones 
v.  Provines 
v.  Thorington 
v.  Tunstall 

Luce  v.  Carley 
v.  Clarke 
v.  McLoon 

Lucy  v.  Hopkins 


SECT. 

235 
176 
258 

78 

11 
260 

23 
147 

60 


v.  Tenn.  &  Coosa  R.  Co.  256,  259 
Ludlow  Manuf.  Co.  v.  Indian  Or- 
chard Co.  256 
Ludwig  v.  Stewart  n 
Lumley  v.  Haggerty  259 
Luna  v.  Edmiston  77 
Lund  v.  Seamen's  Sav.  Bank  142 
Lunn  v.  Johnson  60,  63 
Lunsford  v.  Alexander  265 
v.  Turner  265 
Lunt  v.  Adams  132 
Lush  v.  Edgertcn  no 
Luther  v.  Winnissimmet  Co.  182 
Lydig  v.  Braman  118 
Lyebrook  v.  Hall  265,  273 
Lyell  v.  Kennedy  79 
Lyford  v.  Thurston  201 
Lyle  v.  Murray  122,  123,  209 
Lyme  First  Congregational  Soc.  v. 

Miller  73 

Lynch  v.  Cox  184,  201,  240 

7.  Jennings  142 

Lynde  v.  Williams  259,  267 

Lyon  v.  McDonald  235 

v.  Marclay  64,  70,  200 

v.  Odell  172 

v.  Park  61 

v.  State  Bank  102,  112 

Lysle  v.  Williams  54 

Lyth,  In  re  199 


M. 
Maans  v.  Henderson 
Maber  v.  Maber 
McAfee  v.  Reynolds 
McAIeer  v.  Clay  County 
McArthur  v.  Carrie 

v.  Goddin 

v.  Veitchen 
M'Auliffe  v.  Fitzsimons 
McAvoy  v.  Cassidy 


21 

"3 
48 

30 

1S3 

8 

261 

79 
257 


Ixvi 


STATUTES   OF   LIMITATION. 


SECT. 

McBane  v.  Patrick  182 

McBride  v.  Gay  73 

M'Caffrey  v.  Fisher  258 

McCall  v.  Coover  259,  267 

v    Neely  259,  260 

McCallum,  In  re  275 

McCammon  v.  Pettit  267 

McCann  v.  Sloan  190 

McCamy  v.  Higdon  259 

McCargo  v.  Crutcher  33 

McCartee  v.  Camel  35,  58,  199 

McCarthy  v.  Gordon  172 

v.  Mount  Tecarte  Land  &  Water 


20,  23 

4,  5 

25S 

173 

213 

30 

no 

244 

200,  212 

41 

277 

259,  267 

6S,  70,  72 


4. 


Co. 

v.  White 
McCarly  v.  Foucher 

v.  Leggett 

v.  McCarty 
McCaskill  v.  McKinnon 
McCausland  v.  Ralston 
Maccaw  v.  Crawley 
McClane  v.  Shepherd 
McClaugherty  v.  Croft 
McClellan  v.  Croften 

v.  Kellogg 
McClelland  v.  West 
McClinton  v.   Pittsburg,  &c.  R.  Co. 

19.  38,  39 
McClung  v.  Capehart 

v.  Ross 
M'Cluny  v.  Silliman 
McClure  v.  Colyear 

v.  McClure 
McClurg  v.  Fryer 

v.  Howard 
McCollister  v.  Willey 
McComb,  Re 
McCombe  v.  Davies 
McConnel  v.  Kibbe 
McC.mnell  v.  Bowdry 
v.  McConnell 
-■.  Merrill 
McConnico  v.  Thompson 

-  <n  t.  Galbrailh     18,  122,  123,  210 

McCord  ■  .  K  iDwlton  199 

;  mil  k  v.  Brown  77 

owi  -I  v.  Cubbison  210 

Nil  hols  u,  240,  251 

n  Co.  V.  Mer.  Trust  Co.        1  1 

McCrancy  v.  Ransom  205 


211 

258 
,  52 
118 
2S2 
146,  290 
101 

7 

199 

21,  183 

180 

265 

259 
288 

7 


McCranie  v.  Murrell 

77 

McCulloch  v.  Dawes 

188 

v.  Norris 

7 

McCullough  v.  Henderson 

115 

v.  Judd 

27S 

v.  McCullough 

21 

v.  Speed 

6 

McCutchen  v.  Dougherty 

6 

McDaniel  v.  Barnes 

no 

v.  Dougherty 

1 

McDevitt  v.  Sullivan 

265 

McDoal  v.  Yeomans 

146 

Macdonald,  In  re 

82 

190 

McDonald  z.  Dickson 

21 

v.  Gray 

69,  73 

v.  Hovey 

ft 

v.  Johns 

251 

v.  May 

200 

208 

v.  McDonald 

53,  79 

v.  Magruder 

145 

v.  McGuire 

240, 

251 

v.  Nebraska 

289 

v.  Sims                               172, 

200, 

212 

v.  Underhil! 

77 

McDonnell  v.  Branch  Bank 

118 

v.  Fitzgerald 

16 

v.  Montgomery  Bank 

123 

McDougal  v.  Calef 

146 

v.  State 

119 

McDougald  v.  Dawson 

188 

v.  Hulet 

281 

McDowell  v.  Goldsmith 

73, 

200 

v.  Heath 

58 

v.  Potter                          122, 

123, 

240 

McEldowney  v,  Wyatt 

ir 

M'Elmoyle  v.  Cohen 

8, 

222 

McElroyt'-  Continental  Ins.  Co. 

42 

Mc El  vain  v.  Garrett 

97, 

105 

McFlwig  v.  James 

2S2 

McEvoy  v.  Lloyd 

259 

McFadden  v,  Fortier 

no 

McFarland's  Estate 

188 

McFarland  t.  Lewis 

no 

v.  O'Neil 

27S 

v.  Peabody  Ins.  Co. 

42 

v.  Stone 

25  r 

McFarlane  v.  Kerr 

255 

McGan  v,  Marshall 

236 

McGary  v.  I  listings 

173 

McGee  v.  Morgan 

260 

TABLE   OF   CASES. 


lxvii 


SECT. 

McGehee  v.  Blackwell 

7 

v.  Greer                           104, 

115 

116 

McGhee  v.  Gainesville 

289 

McGinnis  v.  Erie  Co. 

40a 

v.  Porter 

270 

M'Glensey  v.  Fleming 

77,  78 

McGough  v.  Jamison 

142 

McGovney  v.  Gwillim 

221 

McGowen  v.  Sennett 

54 

McGraw  v.  Walker 

54 

McGregor  v.  Wait 

182 

McGrew  v.  Forsyth 

79 

McGuesney  v.  Heister 

172 

McGuffie  v.  Burleigh 

85 

McGuire  v.  Linneus 

200 

212 

v.  Ramsay 

201 

211 

v.  Shelby 

221 

McHenry,  In  re 

77 

145 

v.  Wells 

iSS 

M'Intire  v.  Carson 

195 

v.  Morris 

190 

v.  Oliver 

285, 

287 

v.  Prior                                 5S 

.  59- 

276 

Mcintosh  v.  Haydon 

124. 

Mclntyre  v.  Ajax  Mining  Co. 

7 

v.  Cross 

no 

Mclver  v    Moore 

7 

v.  Ragan 

259 

McKee  v.  Alien 

28g 

v.  Hamilton 

16 

v.  Stroup 

no 

McKeehan  v.  Commonwealth 

52 

McKelvy's  Appeal 

7 

McKenney  v.  Bowie 

171 

v.  McKenney 

n 

McKenzie  v.  A.  P.  Cooke  Co 

1 1 

v.  Durant 

132 

v.  Hill 

194 

McKim  v.  Glover 

175 

McKinley,  Re 

212 

McKinney  v.  Kenny 

263 

v.  Snyder 

79 

v.  Springer 

11 

,  12 

M'Kircher  v.  Hawley 

221 

McKisson  v.  Davenport 

221 

McKizzack  v.  Smith 

iSS 

McKnight  v.  Taylor                  58 

60, 

200 

McKovvn  v.  Whittemore 

274. 

276 

McLain  v.  Ferrell 

58 

McLaflin  v.  Jones 

200 

McLane  v,  Moore 
McLarin  v.  McMartin     97 

v.  Martin 
McLaughlin  v.  Kain 

v.  Maund 
M'Laurin  v.  Wright 
McLean  v.  Clapp 

v.  Fleming 

v.  Jackson 
M'Lean  v.  Ragsdale 

v.  Thorp 
M'Lellan  v.  Albee 

v.  Crofton 
McLeod  v.  Drummond 
McLeran  v.  Benton 
McLin  v.  McNamara 
McLoud  v.  Mackie 
McMahon  v.  Allen 
HcManaman  v.  Hinckley 
McMaster  v.  State 
McMasters  v.  Bell 

v.  Mather 
McMetty  v.  Morrison 
McMillan  v.  Richards 
McMillian  v.  Werner 
McMonagle  v.  McGinn 
McMullen  v.  (jrannis 

v.  Rafferty 
McMullin  v.  Erwin 
McMurray  v.  Hopper 

v    McMurray 

v.  Rawson 
McMurrey  v.  Noyes 
McNair  v.  Hunt 

v.  Kennon 

v.  Lot 

v.  Ragaland 
McNamara  v.  Minn.  Cent 

v.  Seaton 
McNamee  v.  Tenny 

v.  United  States 
M'Naughton  v.  Norris 
McNeely  v.  Langan 
McNutt  v.  Bland 
McPherson  v.  Seguine 
McPhetres  v.  Halley 
McQueen  v.  Babcock 

v.  Ivey 
McQuesney  v.  Hiester 
McRae  v.  Leary       ' 


SECT. 

240 
101,  104,  190 
101 
172 
141 
236 

60 

61 
240 
t45 

64 

68,  77 

280 

21 
6 

72 
264 
294 
222 
119 
270 

115.  no 

6,  8 


58.  59-  276 

68 

79,  117,  124 

259 

1S8 

60,  61 

24 

146 

258 

123 

222,  223,  229 

58,  2IO 

Ry.  Co.   6 

256,  259,  263 

79 

52 

277 

271 

52 
266 

iSS 

4.  243 

260 

32 

68 


Ixviii 


STATUTES    OF    LIMITATION. 


McRae  v.  Williams 
M'Teer  v.  Ferguson 
McVey  v.  Carr 
McWhorter  v.  Johnson 
M'Williams'  Estate 
Macarty  v.  Barrow 
Maccabbhi  v.  Cromwell 
Macfadzen  v.  Olivant 
Mack  v.  Anderson 

v.  Wetzlar 
Mackall  v.  Casilear 
Macklin  v.  Macklin 
Madden  v.  Kempster 
Maddock  v.  Bond 
Maddox  v.  Allen 


SECT. 

259 
igo 
258 
190 

81 
125 
201 
185 
223 
221 
I,  60 

6S 

21 
259 

4i 


v.  Duncan               8,  41,  97,  134,  171 

Madever,  Re  60 

Madison  Ins.  Co.  v.  Fellows  48 

Madox  v.  Humphries  69 

Magaw  v.  Clark  294 

Magee  v.  Bradley  15 

v.  Com.  19,  38 

v.  Hastings  295 

v.  Magee              68,  70,  93,  259,  260 

Magdalena  Steam  N.  Co.  z:  Martin  245 

Maghee  v.  O'Neil  98,  105,  in 

Magruder  v.  Peter  232 

Mahurin  v.  Bickford  30,  34 

Mahon  v.  Cooley  94 

v.  Justices  296 

Mahorner  v.  Harrison  201 

Maine  v.  Oilman  54 

Mainzinger  v.  Mohr  145,  288 

Major  v.  Grigg  173 

Maldaner  v.  Beurhaus  199 

Mallory  v.  Gillett  200 

v.  Tioga  R.  R.  Co.  250 

Malson  v.  Frye  258 

Maltby  v.  Cooper  11,  16 

Maltonner  v.  Dimmick  260 

Malvin  v.  Sweitzer  54 

M  inby  v.  Bcrwicke  275 

Manchester  v.  Braedner  77 

Manchester  Bank  v.  Fellows  136 

v.  Braedner  85 

■■'.  Mathewson  58 

v.  Tibbeits  240 

M  m  Irrston  V.  Robertson  112 

Mande vill  t.  Lane  58 

Mandeville  v.  Wilson  277,  279 


Manger  v.  Ryan 
Manion  v.  Titsworth 
Mann  v.  Fairchild 

v.  Falcon 

v.  Flinn 

v.  Palmer 
Manning  v.  Dallas 

v.  Warren 

v.  Wheeler 
Mansell  v.  Payne 
Mansell,  Re 
Mansfield  v.  Seawell 
Manson  v.  Felton 


SECT. 

195. 

200,  251 

58,  200 

236 

188 

7,  2S1 

7 

58 

77 

280 

289 

119 

190 


Manuel  v.  Norfolk  &  W.  Ry.  Co.      294 
Manufacturers'  Bank  v.  Perry  275 

Manufacturing  Co.  v.  Bank  149 

Maples  v.  Mackey  41 

Mara  v.  Browne  32 

Marcelin  v.  Creditors  105 

Marcotte  v.  Hartman  60 

Marcy  v.  Marcy  266 

Mardis  v.  Shackleford  122,  179 

Mardre  v.  Leigh  5S 

Mareck  v.  Mutual  Reserve  Fund  L. 

Assoc.  42 

Marienthal  a.  Mosler  101 

Marine  Bank  v.  Fulton  Bank  17 

Marine  Ins.  Co.  v.  Young  35 

Marion  Nat.  Bk.  v.  Fidelity,  &c.  Co.   11S 

Marker  v.  Marker  61 

Markley  v.  Amos  256,  259 

Marks  v.  Peli  228,  231,  235,  236 

v.  Russell  54 

Marlborough  v.  Widmore  190 

Marple  v.  Myers  240 

Marqueze  v.  Bloom  70,  71 

Marr  v.  Gilliam  181 

v.  Wlison  60 

Marsden  v.  Panshall  21 

Marseilles  v.  Kenton  68,  73,  279 

Marsh  v.  Oliver  59,  200 

v.  Oneida  Central  Bank  142 

v.  Whitmore  60,  200 

Marshall's  Kslate  212 

Marshall  v.  Coleman  199 

v.  Dalliber  4,  68,  70,  73,123 

v.  Means  60 

v.  Perry  60 

v.  Sherman  149 

v.  Taylor  254. 


TABLE   OF   CASES. 


Ixix 


SECT. 

Marshfield  v.  Cheever 

IQ9 

Marsteller  v.  M'Clean 

7 

v.  Marstellar 

6 

Marston  v.  Seabury 

12 

v.  Fowe 

258 

Martin  v.  Baker 

173 

v.  Bank 

200, 

214 

276 

v.  Bousack 

262 

v.  Bowker 

172, 

229, 

235 

v.  Broach 

68 

v.  Brooklyn 

21 

v.  Draher 

no 

v.  Frantz 

145 

v.  Goble 

182 

v.  Gray 

60 

v.  Heathcote 

279 

v.  Jackson       212,  221,  229,  267,  270 

v.  Knowles  87 

v.  Letty  251 

v.  Martin  II,  12,  173 

v.  Tally  4 

v.  Weston  221 

v.  Williams  190 

v.  Willink  219 

Martindale  v.  Faulkner  121 

Marvin  v.  Hotchkiss  222 

v.  Marvm  54 

Mary,  The  27 

Mary  Blane,  The  v.  Beehler  170 

Maryland  v.  Baldwin  52 

Maskell  v.  Pooley  116 

Mason  v.  Ayers  259 

v.  Broadbent  igg 

v.  Cheney  289 

v.  Crosby  60,  252 

v.  Howell  2S7 

v.  Luce  222 

v.  Tiffany  118 

v.  Union  Mills  Co.  237,  245 

Masonic   &  General  L.  Ass.  Co.  v. 

Sharpe  59 

Mass.  Ben.  L.  Assoc,  v.  Hale  42 

v.  Robinson  42 
Mass.  Turnpike  Co.  v.  Field         58,  274 

Massey  v.  Tingle  210,  211 

Maslin  v.  Branham  69,  86 

v.  Waugh  69,  70 

Mather  v.  Green  154,  179 

Mathes  v.  Bennett  204 

Mathews  v.  Switzler  no 


Matilda  v.  Crenshaw 
Matson  v.  Abbey 
Mattern  v.  McDivett 
Matteson  v.  Palsener 
Matthews  v.  Chrisman 

v.  Phillips 
Mattock  v.  Todd 
Mattocks  v.  Chad  wick 

v.  Lyman 
Mauney  v.  Coil 
Maurice  v.  Worden 
Maury  v.  Coyle 

v.  Mason 
Maxey  v.  Carter 
Maxwell  v.  Kennedy 

v.  Reilly 
May  v.  Buchanan  Co. 

v.  Cass  Co. 

v.  Eastin 

v.  Fond  du  Lac 

v.  Hill 

v.  King 

v.  Rolls  Co. 

v.  Rumney 
Mayberry  v.  Willoughby 
Mayer  v.  Friedman 
Mayfield  v.  Seawell 
Maynard  v,  May 
Mayo  v.  Cartwright 
Mayor  v.  Colgate 

v.  Horner 

v.  Mabie 

v.  Sehner 
Mayor  of  London  v.  Gorry 
Mays  v.  Dwight 
Mayse  v.  Lafferty 
Meacham  v.  Bunting 
Mead  v.  Bowker 

v.  Randolph 


SECT. 

24  r 
259 
277 

97 
146 
190 
275 

77 
24,  25 

277 

237 

142 

200,  213 

145 
60,  200 
68,  79 
40a 
4o# 
236 
40a 

259 
280 
40a 

273 

2S7 

8 

119 

188 

6 

65,  172 

29 

173 

11 

19 

265 

259 

2f.  9 

21 

236 


Meador  v.  Dollar  Sav.  Bank       118,  142 
Meads  v.  Merchants'  Bank  140 

Meanor  v.  Hamilton  240 

Mease  v.  Stevens  172 

Mebane  v.  Patrick  1S2 

Mechanics'  &  Farmers'  Bk.  Appeal  n 
Mechanics'  Building  Assoc,  v.  Whit- 
acre  8 
Medbury  v.  Hopkins  8 
Meder  v.  Norton  275 
Medley  v.  Elliott                                      221 


lxx 


STATUTES   OF   LIMITATION. 


SECT. 

Medlicott  v.  O'Dor.el  I,  58 

Meegan  v.  Boyle  240 

i\Ieek  v.  Meek  n 

Meeks  v.  Vassault  6,  117 

Megginson  v.  Harper  124 

Mehaffy  v.  Dobbs  266 

Meigan  v.  M'Donough  195 

Meisenheimer  v.  Kellogg  1,  7 

Meisse  v.  McCoy  296 

Meiizler  v.  Todd  68 

Melia  v.  Simmons  259 

Mellersh  v.  Brown  16 

Mellick  v.  De  Seelhorst  69,  71 

Melling  v.  Leake  203 

Mellish's  Estate  214 

Melius  v.  Snowman  259 

Melver  v.  Moore  7 

Melville  v.  Brown  183 

Melvin  v.  Proprietors,  &c.  263 

Memphis  v.  United  States  11 

Memphis  Bank  v.  White  13S 

Memphis,  &c.  R.  R.  Co.  v.  Orr  293 

Menard  v.  Marks  188 

Menendez  v.  Holt  60 

Menges  v.  Frick  54 

Menkens  v.  Blumenthal  61 

v.  Ovenhouse  267 

Meraman  v.  Caldwell  259 

Mercantile  Bank  v.  Carpenter  276 

Mercein  v.  Burton  186 

Mercer  v.  Selden  6,  251 

v.  Watson  257 
Merchants'  Nat.   Bank  v.  First  Nat. 

Bank  143^ 
Merchants'  Mut.  I.  Co.  v.  La  Croix  51 
Merchants'  Nat.  Bank  v.  First  Nat. 

Bank  140 

Meredith  v.  Andres  266 

v.  Sayre  61 

Mereness  v.  First  Nat.  Bank  142 

Merle  v.  Andrews  123,  209 

Merriam  v.  Bayley  98 

v.  Hassam  212 

v.  Hays  269 

7.  Leonard  71,  79,  85 

II  v,  Jacksonville    Nat.  Bank 

59.  Ml 

7.  Monticello  1 

I  evis  238 

z.  To', in  258 


SECT. 

Merritt  v.  Day  287 

Merryman  v.  State  7 

Metcalf  v.  Watertown  8 

Mes'n  L.  Ins.  Co.  v.  Dempsey  42 

Met'n  Lumber  Co.  v.  Lake  Superior 

Ship  Canal  Co.  59 

Met'n   Nat.  Bank  v.  St.  Louis  Dis- 
patch Co.  59 
Met'n  Safety  Fund  Ace.  Assoc,   v. 

Windover  42 

Meyer  v.  Graham  258 

v.  Quarteman  276 

Meyerhoff  v.  Froehlich  77 

Miami     Exporting    Co.    v.     United 

States  Bank  236 

Michael  v.  Girod  215 

Michan  v.  Wyatt  240 

Michoud  v.  Girod  58,  214,  275 

Michigan,  &c.  Bank  v.  Eldred       1,  289 

Michigan  Ins.  Co.  v.  Brown   97,  115,  223 

Mickey  v.  Burlington  Ins.  Co.       49,  51 

Middaugh  v.  Fox  60 

Middlesex  Co.  v.  Lane  254 

Middleton  v.  Frame  no 

v.  Twombley  123 

Midgley  v.  Midgley  188 

Midland  R.  Co.  v.  Smith  61 

Midmer  v.  Midmer  201 

Miflin  v.  Stalker  73 

Miles  v.  Berry  252,  274 

v.  Moodie  25,  72 

v.  Thorn  212 

v.  Vivian  59 

Millard  v.  Hathaway  201 

Millay  v.  Millay  259 

Mill  Dam  Corp'n  v.  Bulfinch  258 

Mill  Dam  Foundry  v.  Hovey         16,  19 

Milledge  v.  Gardner  26 

Miller  v.  Adams  154 

v.  Baschore  68,  70,  86,  88 

v.  Bear  219 

v.  Bonsadon  265 

v.  Brenham  8 

v.  Brenhaur  8 

v.  Cinnamon  278 

v.  Col  well  278 

v.  Commonwealth  it 

v.  Dell  1,  17.  183,  276 

?'.  Dorsey  101,  188,  190 

v.  Dow  262 


TAIJLE   OF   CASES. 


lxx 


Miller  v.  Downing 
v.  Ewing 
v,  Hackley 
v.  Hayden 
v.  Hinds  County 


SECT. 

267 
259 
125 
180 
125 


Milvvard  v.  Ingram 
Mims  v.  Sturtevant 
Miner  v.  Beekman 


v.  Jefferson  College  Trustees        21 

v.  Keokuk,  &c.  Ry.  Co.  180 

v.  Lancaster  64,  73 

v.  Lesser  6,  252 

v.  Long  Island  R.  Co.           258,  267 

v.  Magee  79 

v.  Marshall  181 

v.  McBrian  265 

v  Mclntyre  7,  58,  59 

v.  Miller  169,  210,  266 

v.  Mitchell  5S 

v.  Piatt  256,  267,  369 

v.  Powers  276 

v.  Race  21 

v.  Shackleford  259 

v.  Shaw  257,  258,  259,  261 

v.  Smith  172 

v.  State  52 

v.  State  Ins.  Co  42 

v.  Surls  267 

v.  Talcott  101 

v.  Texas  &  Pac.  Ry.  Co.  237 

v.  United  States  7 

v.  Watson  20,  35 

v.  Williams  265 

v.  Wood  274 

Milieu  v.  Mullen  258 

Millhaller  v.  Jones  265 

Millhouse  v.  Patrick  265 

Millington  v.  Hill  6 

v.  Holland  210 

Mills  v.  Darling  236 

v.  Davis  85,  105,  118,  124 

v.  Drewitt  5S 

v.  Fowkes    97,  98,  99,  101,  no,  280 

v.  Jefferson  27 

v.  Mills  142a!,  276 

v.  Saunders  no 

v.  Taber  68,  73 

v.  Wildman  68 

Milner  v.  Davis  238 

Milnes  v.  Cowley  59 

v.  Van  Gilder  235 

Miltenl  erger  v.  Com.  29 

Milton  v.  Hayden  265 


SECT. 
280 
I20 

58,  221,  224, 

225,  235,  265 

v.  Graham  145 

v.  Lorman  101 

v.  New  York  263 

Mining  Co.  v.  Mining  Co.  5S 

Minkler  v.  Minkler  79 

Minneapolis  Harvester  Co.  v.  Smith     8 

Minniece  v.  Jeter  86 

Minot  v.  Brooks  259 

v.  Thatcher  202 

Mirick  v.  Bashford  173 

Missouri  Bank  v.  Benoist  17,  142 

Missouri  Sav.  &  Loan  Co.  v.  Rice       21 

Mitchell's  Claim  72,  77,  86 

Mitchell  v.  Berry  240,  251 

v.  Clay  77 

v.  Dall  no 

v.  Foster  54 

v.  Lenox  60 

v.  Lunt  195 

v.  McLemore  123 

v.  Mitchell  18,  70 

v.  Ostrom  285 

v.  Payas  273 

v.  Sellman  73 

v.  Shepperd  219 

v.  Warner  173 

v.  Woodson  55,  58 

Mitcheliree  v.  Veach  41 

Mix  v.  Andes  Ins.  Co  50 

v.  Shatluck  287 

Mixer  v.  Sibley  6 

Mixler  v.  Sullivan  153 

Mixter  v.  Woodcock  259 

Moakley  v.  Riggs  146 

Mobile  Bank  v.  Huggins  20 

Mode  v.  Loud  263 

Mooers  v.  White  188 

Moffatt  v.  Buchanan  183,  212 

v.  Strong  265 

Moffitt  v.  Carr  101 

v.  McDonald  271 

Mohawk  Bank  v.  Broderick  140 

Moles  v.  Crozier  294 

Moline  Plow  Co.  v.  Webb  222 

Molony  v.  Molony  265 

Molton  v.  Henderson  153,  208 


lxxii 


STATUTES   OF   LIMITATION. 


SECT. 

Monks  v.  Buller 

182 

Monro  v.  Merchant 

259 

Monroe  Cattle  Co.  v.  Becker 

54 

Montague  v.  Perkins 

135 

v.  Sandwich 

183 

v.  Smith 

183 

Montgomery  v.  Chad  wick    222,  225,  235 

v.  Cunningham  68 

v.  Montgomery  58 

v.  Noyes  60 

v.  Reed  173 

Montgomery  Bank  v.  Plannett  188 

Montgomery  Light  Co.  v.  Lahey         59 

Montresor  v.  Williams  199 

Mooar  v.  Mooar  97 

Moodie  v.  Bannister  176,  188 

Moody  v.  Fleming  52,  259 

Mooers  v.  Bunker  6 

Moon  v.  Baum  58 

Moore  v.  Armstrong  239,  240 

v.  Cable  222,  224 

v.  Caldwell  119 

v.  Calvert  237 

v.  Capps  238 

v.  Clark  71 

v.  Collinshaw  269,  270 

v.  Columbia  Bank,  68,  69,  70, 

72,  79,  82,  84 

v.  Edwards  139 

v.  Gray  no 

v.  Greene  215 

v.  Hardison  190 

v.  Hillebrant  190 

v.  Hinkle  259 

v.  Houston  55 

v.  Hyman  68 

v.  Johnston  259 

v.  Knight  275,  276 

v.  Lobbin  12.  282 

v.  McLendon  13 

v    Moore  259 

v,  Munro  277 

v.  Paxton  30 

v.  Petchell  199 

v.  Porcher  58,  190,  212 

nail  270,  271 

v.  Smith  172 

v.  State  11,  13 

v.  Stevens  73 

7.  Stiong  98 


SECT. 

Moore  v.  Thompson  257,  258 

v.  Turpin  270 

v.  Wallis  238 

v.  Webb  26a 

Moores  v.  Winter  179 

Moran  v.  Horsky  52,  59 

Moravia  v.  Levy  280 

Morehead  v.  Gallinger  78 

v.  Wriston  79 

Morewood  v.  Jones  182 

Morey  v.  Amer.  Loan  &  Trust  Co.    199 

v.  Farmers'  Loan  &  Trust  Co.      65 

Morford  v.  Cook  n 

Morgan  v.  Bank  79 

v.  Bishop  7 

v.  Brown  119,  121 

v.  Dodge  188 

v.  Hedstrom  25 

v.  Hunt  173 

v.  King  59 

v.  Morgan  225,  235 

v.  Mueller  235 

v.  Plumb  119,  179 

v.  Rowlands  72,  86,  104,  126 

v.  Taylor  262 

v.  Tener  18,  122,  274 

v.  Varick  18 

v.  Walton  68,  70,  81 

Morgan  County  v.  Allen  150 

Morrell  v.  Frith  68,  87,  93,  95 

Morrill  v.  New  England  F.  Ins.  Co.     42 

Morris  v.  Bacon  221 

v.  Callanan  258 

v.  Edgington  173 

v.  Hannick  33 

v.  Hazelhurst  73 

v.  Lowe  183 

v.  Lyons  77 

v.  Morris  60 

v.  Nixon  236 

v.  Pugh  291 

v.  Richards  125,  132 

v.  Wadsworlh  146 

Morris  &  E.  R.  Co.  v.  Pruden  61 

Morrison  v.  Chapin  258 

p.  I  lays  267,  271 

v.  Mullin  118,  119 

v.  Norman  240 

v.  Rogers  21 

v.  Wilson  219. 


TABLE   OF   CASES. 


Ixxiu 


Morrow  v.  James 

Morse  v.  Allen 
v.  Minton 
v.  Roberts 
v.  Sherman 

Morton  v.  Chandler 


SECT. 
259 
20 
278 
265 
256 

66 


Mosher  v.  Hubbard       68,  69,  70,  71,  79 

Moshier  v.  Redding  265 

Moss  v.  Gallimore  221 

v.  Scott  267 

v.  Shear  256 

Motley  v.  Montgomery  119 

Mott  v.  Fiske  236 

v.  Harrington  236 

v.  Palmer  173 

Mouillerat's  Estate,  In  re  193 

Moulton  v.  Walsh  7 

Mount  v.  Mount  276 

Mountstephen  v.  Brooke     65,  68,  79,  So 

Mowbray  v.  Appleby  77 

Mowry  v    Cheesman  34 

Moyle  v.  Landers  274 

v.  Roberts  172 

Mueller  v.  Wiebracht  no 

Muir  v.  Bozarth  276 

Mullett  v.  Shrumph  68,  77 

Mulliday  v.  Machir  20S 

Mumford  v.  Freeman  68,  70,  77,  78 

Municipal    Freehold    Land    Co.    v. 

Pollington  58,  276 

Munnerlyn  v.  Augusta  Sav.  Bank     118 

Munro  v.  Merchant  259,  262 

v.  Potter  287,  288 

Munroe  v.  Hanson  282 

v.  Perkins  191 

v.  Phillips  163 

v.  Wilson  156 

Munshower  v.  Patton  52,  257,  258 

Munson  v.  Halloway  58 

v.  Hallowell  276 

v.  Rice  74 

Murdock  v.  Hughes  200,  201,  212 

v.  Waterman  223 

Murgatroyd  v.  Robinson  182 

Murphy,  In  re  6 

v.  Blair  58 

v.  Coates  235 

v.  De  France  60 

v.  Murphy  212 

v.  Springer  267 


Murphy  v.  Trigg 

v.  Welch 
Murray  v.  Ballou 

v.  Carter 


SECT. 

236 

235 

208 

68 


v.  Chicago  &  N.  W.  Ry.  Co.       242 
v.  Coster        58,  68,  70,  123,  200, 

209,  238,  279 
v.  East  India  Co.  6,  39,  117, 

190,  194 

v.  Fishback  229 

v.  Fisher  8 

v.  Hudson  267 

v.  Scribner  180 

v.  Shanklin  259 

v.  Toland  280 

v.  Watkins  6 

Muscot  v.  Ballet  173 

Muse. v.  Donelson  285,  287 

v.  London  Ass.  Corp.  55 

Mussen  v.  Price  137 

Mussey  v.  Mussey  200,  215 

Musurus  Bey  v.  Gadban  245 

Mutual  L.  Ins.  Co.  v.  Garland  183 

Myatts  v.  Bell  116,  287 

Myer  v.  Beal  222,  223 

Myers  v.  Cronk  122 

v.  Estell  221 

v.  White  221 

Mygatt  v.  Wilcox  16,  121 

Mylar  v.  Hughes  261 

N. 


Naglee  v.  Albright 

267 

Nance  v.  Dunlavy 

276 

Napier  v.  Gidiere 

30 

v.  Simpson 

263 

Nash  v.  El  Dorado  Co. 

127 

v.  Fletcher 

n 

v.  Hodgson 

96,  98,  ioi,  no 

v.  Palmer 

173 

v.  Peden 

182 

v.  Turner 

265 

National  Bank  v.  Carpenter  200 

v.  Norton  285 

National  Mahaiwe  Bank  v.  Peck  no 

National  State  Bank  v.  Rowland  101 

Naught  v.  O'Neal  12 

Neal  v.  Keel  24 

Neale  v.  Walker  7 

Nearhoff  v.  Addleman  258,  259,  261,  267 


lxxiv 


STATUTES    OF    LIMITATION. 


SF.CT. 

Neave  v.  Moss 

265 

Nedvidek  v.  Meyer 

24 

Needham's  Case 

I89 

Neel  v.  McElhenny 

256,    270 

Neely's  Appeal 

59.  60 

Neil  v.  Abbott 

68,  78 

v.  Cunningham 

18S 

Neill  v.  Keith 

201 

Neilley,  In  re 

2,  60 

Nellis  v.  Lathrop 

265 

Nelson  v.  Bond 

41 

v.  Booth 

227 

v.  Carrington 

60 

z:  Cooper 

259 

v.  D'Armand 

96,   105,   115 

v.  Hanson 

68 

v.  Herkell 

194 

v.  Loder 

222 

v.  North 

11 

Nepean  v.  Loe 

58 

Neppach  v.  Jones 

60 

Nesbit  v.  The  Amboy 

27.  59 

Nesom  v.   D'Armond 

115 

Nestelle  v.  No.  Pac.  R.  Co 

179 

Nei  ties  v.  Nettles 

213 

Nev  es  v.  Scott 

275 

Neville  v.  Brock 

281 

v.  Northcutt  1 

Nevitt  v.  Bacon  21,  222,  224 

New  Albany,  &c.  R.  R.  Co.  v.  Pickens 

150 
Newall  v.  Woodruff  266 

New  Barbadoes  Toll  Bridge  Co.  v. 

Vreeland  219 

Newbern    Bank  v.  Sneed  73 

Newbould  v.  Smith  64,  79 

Newby  v.  Blakly  10 

Newcomb  v.  Neil  68 

~ .  St.  Peter's  Church     172,  222,  229 
Nevvcombe  v.  Leavitt  1 

Newell  v.  Dart  295 

v.  Fowler  146 

v.  Whigham  154. 

New  England  Bank  v.  Lewis  132 

v.  Newport,  &c.  Co.  188 

New  Engl  ind  1".  Ins.  Co.  t.  Haynes  125 
N     •   Hampshire  v.  Louisiana  52 

N    ivl.iik  v.  Campbell  79 

v,  (  ii  ipron  1 1 

Newlin  v.  Duncan  65 


Newlove  v.  Pennock 
Newman  v.  Kettell 

v.  Mackin 

v.  Marvin 
New  Orleans  v.  Fisher 


SECT. 

244 
118,  124 

265 
294 

53 


v.  New  Orleans  Water  Works  Co.  11 

v.  Warner  265 

New  Orleans,  &c.  Co.  v.  Harper         64 

Newsome  v.  Persons  277 

Newson  v.  Davis  219 

v.  Thornton  21 

Newton  v.  N.  Y.  &  N.  E.  R.  Co.        179 

v.  Wilmot  173 

New  York  v.  Hamilton  Ins.  Co.     42,  50 

v.  Louisiana  52 

New  York  Bank  v.  Livingston  146 

New  York  Belting  Co.  v.  Jones  71,  101 

New  York  Cent.  R.  Co.  v.  Brennan     258 

New  York  D.  and  Transp.  Co.  v.  Covert 

230 
New  York  Life   Ins.  Co   v.  Covert 

176.  222,  287 

New  York,  &c.  R.  R.  Co.  v.  Van  Horn  1  r 

New  York  Rubber  Co.  v.  Rothery       60 

Niblack  v.  Goodman  176,  198,  240 

Nicholas  v.  Pullin  173 

Nicholls  v.  Atwood  34 

v.  Wilson  121 

Nichols  v.  Aylor  182 

v.  Boston  25S 

v.  Briggs  223 

v.  Cabe  236 

?'.  Fox  290 

v.  Regent's  Canal  Co.  77 

v.  Reynolds  236,  267 

Nicklace  v.  Dickerson  25S 

Nicklin  v.  Williams  178- 

Nicks  v.  Martindale  6,  194. 

Nickson  v.  Toney  236 

Nicolls  7.  Rodgers  S 

Niemcewicz  v.  Bartlett  97 

Nimmo  v.  Com.  52 

Nimms  v.  Walker  119 

Ninth  Ave.  R.    R    Co.  v.  N.   Y.  El. 

R.  Co.  61 

N.  K.  Fairbank  Co.  v.  Luckel,  King 

&  Cake  Soap  Co.  58 

Noble  v.  Bellows  121 

<".  King  173 

v.  Merrill  30 


TABLE    OF   CASES. 


lxxv 


Noke's  Case 
Noke  v.  Awder 
Nolasco  v.  Lurty 
Nolin  v.  Blackwell 
Norcross  v.  Norcross 
Norman  v.  Foster 
Norris's  Appeal 
Norris  v.  He 

v.  Gautris  Hundred 


SECT. 

173 

173 

35 

19 

221 

173 
35,  199,  205 

258 
54 


v.  Haggin  40a,  58,  60,  200,  274,  276 

v.  Tripp  n 

North  v.  Barnum  212 

v.  Hammer  259 

v.  James  6 

v.  Platte  Co.  58 

North  America  Bank  v.  M'Call  21 

Northern  v.  Wilkins  190 

Northern  Ass.  Co.  v.  Hanna  42 

Noithern  Counties  Inv.  Trust  v.  Enyard 

257 
Northern    Liberties,  Bank  of,  v.   Jones 

142 

Northern   Pac.  Ry.  Co.  v.  Ely  259 

v.  Montgomery  39 

Northrop  v.  Hill  155,  179 

v.  Wright  259 

Northwestern  &  P.  H.  Bank  v.  State  52 

Norton  v.  Carpenter  70 

v.  Colby  70 

v.  Ellam  118 

v.  Frecker  188 

v.  Hall  145 

v.  Larco  278 

v.  Shepard  77 

Norwich  v.  Hubbard  221 

Norwich,  &c.  R.  R.  Co.  v.  Storey         24 

Norwich,  &c.  Trans.  Co.  v.  Western 

Mass.  Ins.  Co.  42 

Nougues  v.  Newlands  218 

Nowell  v.  Nowell  188 

Nowland  v.  Martin  145 

Novvlin  v.  Reynolds  259 

Noyes  v.  Crawley  7,  200,  211 

v.  Johnson  260 

v.  Morrill  182 

v.  Nichols  146 

Nudd  v.  Hamblin  276 

Null  v.  White  Water  Valley  Canal  Co. 

296 


SECT. 

Nutall  7/.  Browning 

no 

Nye  v.  Alfter 

258, 

259 

0. 

Oakes  v.  Howell 

58 

v.  Marcy 

270 

v.  Mitchell 

63, 

190 

Oakson  v.  Beach 

68 

Oatman  v.  Fowler 

267 

Obee  v.  Bishop 

35.  199. 

218 

O'Brien  v.  Goodrich 

259 

Ockenden,  Ex  parte 

21 

O'Connor  v.  Towns 

54 

Ode  v.  Manhattan  El.  R. 

Co. 

61 

Odlin  v.   Greenleaf  119,  145 

Odiorne  v.  Lyford  266 

O'Dougherty  v.  Felt  221 

Offut  v.  Chapman  70 

v.  Henderson  7 

O'Gara  v.  Neylon  273 

Ogden  v.  Saunders  11 

Ogdensburgh,  &c.  R.  R.  Co.  v.  Frost  20 

O'Hara  v.  Richardson  261,  270- 

v.  State  N.  Y.  119 

Ohio  L.  &  T.  Ins.  Co.  v.  Winn           222 

Olcott  v.  Scales     •  64 

v.  Tioga  R.   R.  Co.  250 

Old  Colony  Trust  Co.  v.  Dubuque 

Light  Co.  40a 

Cld  South  Society  v.  Wainwright      266 

Oliphant  v.  Smith  ir 

Olive  v.  State  180 

Oliver  v.  Berry  239 

v.  Gray         65,  66,  68,  69,  73,  79,  93 

v.  McClure  11 

v.  Phelps  no 

v.  Piatt  200,  212 

v.  Powell  265 

v.  Pullam  6,  237 

v.  Thomas  16 

Oliver  Lee  &  Co.'s  Bank  11 

Omaha  &  F.  Land  Co.  v.  Parker       245 

Oneale  v.  Lodge  20 

O'Neil  v.  Magner  118,  124 

O'Neill  v.  Bradford  142 

Oothout  v.  Ballard  132 

v.  Thompson  66 

Orbison  v.  Morrison  261 

Ord  v.  De  La  Guerre  212 

Ruspini  281 


lxxvi 


STATUTES   OF   LIMITATION. 


Ord  v.  Smith 

231 

SECT. 
235 

P. 

Pace  v.  Hollaman 

SECT. 
I 

Orde  v.  Heming 

228 

Pacifi 

:    Coast    Steamshi 

p    Co 

V. 

Oriental  Bank  v.  Freese 

II 

Bancroft- Whitney  Co. 

27 

O'Rilsy  v.  Finegan 

77 

Packer  v.  Gonsalus 

12 

Ormond  v.  Martin 

260 

Paddl 

eford  v.  Dana 

II 

Ormsby  v.  Letcher 

68,  69 

v. 

Dunn 

12 

v.  Vt.  Mining  Co. 

60 

Paddock  v.  Colby 

68,  7 

1.  76,  77 

Oir  v.  Hadley 

221 

Paff  v 

.  Kidney 

200 

Orrel  v.  Maddox 

270 

Page 

v.  Kinsman 

265 

Onhwein  v.  Thomas 

117 

v. 

Page 

201 

Osborn  v.  Jaines 

11 

v. 

Weymouth 

54 

v.  Ryder 

54 

Paige 

v.  Carroll 

154 

v.  Weldon 

273 

v. 

Hughes 

215 

Osborne  v.  Endicott 

201 

Paine 

v.  Drew 

8 

v.  Lindstrom 

11 

v. 

Hutchins 

258,  267 

v.  Moncure 

54 

Palmer  v.  Andrews 

104 

v.  Mo.  P.  R.  R.  Co. 

61 

v. 

Bennett 

244 

v.  Wilkes 

276 

V. 

Butler 

80,  92 

Osburn  v.  Searles 

258 

V . 

Dodge 

287 

Osgood  v.  Artt 

23 

V. 

Eyre 

229 

v.  Strauss 

129 

V. 

Gillespie 

68,  70 

Oswald  v.  Leigh 

172, 

199 

V. 

Jackson 

235 

Ott  v.  Great  Northern  4ly. 

Co. 

179 

V. 

Palmer 

11S 

v.  Whitworth 

66 

V. 

Shaw 

245 

Otterback   v.  Brown 

SS 

Paque 

tel  v.  Gauche 

265 

Otwav  v.  Ramsey 

30 

Parde 

y  v.  Mechanicsville 

294 

Oughlerloney  v.  Powis 

68, 

205 

Pare  z>.  Clegg 

217 

Outcalt  v.  Ludlow 

260 

Paris 

v.  Hiram 

57 

Outhouse  v.  Outhouse 

158,  177, 

183 

Parisen  v.  New  York  &  L. 

B.  R. 

Co.     15 

Overfield  v.  Christie 

258, 

271 

Parish  v.  Eager 

12 

v.  Sutton 

6 

Park 

v.  Cochran 

269 

Overstreet  v.  Bates 
Overton  v.  Bigelow 

v.  Tracey 
Oviatt  v.  Sage 

212 
236 

151 
24 

v.  Peck 
Parker  v.  Ash 
v.  Banks 
v.  Brancker 
v.  Carter 

35, 

222 

199,  205 

221,  224 

22 

205 

Owen,  In  re 

259 

v. 

Colcord 

289 

v.  Campbell 

273 

V. 

Cul  vertson 

146 

v.  Morion 

266 

V. 

Dunn 

173 

v.  Slate 

175 

V. 

Erwin 

7 

v.  Western  Savings  Fund 

'55 

V. 

Gaines 

118 

v.  Wooley 

69 

V. 

Hall 

208 

Owings  v.  Norwood 

v.  Owings 
Owingsville,  &c.  Road  Co 

.1  urant 
Ozark  Plateau  Land  Co.  V 

v.  Bon- 
Hays 

229 
145 

149 

V. 
V. 
V. 
V. 
V. 
V. 

Hallock 

Harden 

Hawk 

Irwin 

Kane 

Locks  and  Canals 

4cw,  52 

183 

4oa,  52 

7 

7 

258,  266 

[ohnson 

258, 

259 
24 

V. 
V. 

McLaughlin 
Macomber 

265 
149 

TABLE   OF   CASES. 


lxxvii 


SECT. 

SECT. 

Parker  v.  Merrill 

285 

Patterson  v.  Nichol 

40 

v.  O'Bear 

273 

v.  Prior 

21 

v.  Overman 

254 

v.  Reigle 

256 

v.  Parker 

257, 

258 

v.  Todd 

124 

v.  Patrick 

21 

Pattison  v.  Horn 

236 

v.  Shannon 

60 

Patton  v.  Ash 

72 

v.  Shu  ford 

79 

v.  Dixon 

6 

v.  Stroud 

134 

v.  Hassinger 

70,  81 

,96 

v.  Tainter 

20 

v.  Magrath 

73 

v.  Wat  kins 

227 

v.  McFarlane 

174 

Parkersburg  Nat.  Bank  v.  Als 

142 

Paul  v.  Chouteau 

201 

Parkersburg  Ind.  Co.  v.  Schultz 

258 

v.  Stone 

54 

Parks  v.  Hall 

236 

v.  Witman 

174 

v.  Mitchell 

182 

Paulin  v.  Kaighn 

145 

v.  State 

52 

Pawlet  v.  Sandgate 

20 

Parley  v.  Little 

68 

Paxson  v,  Bailey 

260 

Parmalee  v.  Lawrence 

236 

Payne  v.  Blackshear 

259 

v.  M'Nutt 

52 

v.  Couch 

20 

Parmelee  v.  Thompson 

6 

v.  Esdaile 

32 

Parr's  Banking  Co.  v.  Yates 

20 

v.  Gardiner             118, 

120,  141, 

142 

Parris  v.  Cobb 

123, 

209 

;'.  Hathaway 

io0 

Parsons  v.  Chamberlain 

55 

v.  Hook 

275 

v.  Hartman 

276 

v.  Patterson 

201 

v.  M'Cracken                      6 

240, 

251 

v.  Pusey 

188 

v.  Northern,  &c.  Iron  Co. 

63,73,7^ 

v.  Slate 

141 

286 

Partee  v.  Thomas 

240, 

259 

:•.  Walker 

278 

Partington  v.  Butcher 

65 

Peables  v.  Hannaford 

54 

v.  Woodcock 

221 

Peabody  v.  Chapman 

145 

Partlow  v.  Singer 

104 

v.  Roberts 

224 

Partridge  v.  Bere 

221 

v.  Tarbell 

20 1 

v.  Butler 

I4Q 

v.  Tenney 

289 

v.  Mitchell 

188 

Peaceable  v   Reed 

266 

270 

v.  Schwartz 

277 

Peacock  v.  Haven 

188 

v.  Wall 

200 

v.  Nevvbold 

205 

v.  Wells 

200 

211 

v.  Rhodes 

21 

Paschall  v.  Hall 

123 

Peake  v.  Fuller 

119 

Patch  v.  King 

28S 

Peakin  v.  Peakin 

265 

v.  Wild 

227 

Pearce  v.  French 

263 

Patchen  v.  Pierce 

233 

v.  House 

6 

240 

Paterson  v.  Tash 

21 

v.  Nix 

265 

Patrick  v.  Chenault 

259 

v.  Patton 

11 

v.  Farmers'  Ins.  Co. 

42 

v.  Zimmerman 

190 

v.  Sampson 

53 

276 

Peardon  v.  Underhill 

182 

Patterson  v.  Choate 

285 

287 

Pearpoint   v.  Graham 

54 

v.  Cobb 

188 

190 

Pears  v.  Laing 

229,  230 

235 

v.  Doe 

20 

Pearsal  v.  Thorp 

259 

v.  Gaines 

11,  12 

Pearsall  v.  Dwight 

7.8 

v.  Hansel 

265 

v.  Kenan 

11 

v.  Lynde 

150 

Pearsol  v.  Chapin 

21 

v.  Neuer 

72 

Pearson  v.  Adams 

256 

lxxviii 


STATUTES   OF    LIMITATION. 


SECT. 

Pearson  v.  Darrington  68,  78,  79 

Pearson  v.  Harper  77,  78 

Pease  v.  Bennett  30 

v.  Howard  16,  30,  32,  34.  39 

v.  Lawson  256 

v.  Pilot  Knob  Iron  Co.  221 

Peaslee  v.  Barney  201 

v.  Breed  118,  124,  171,  197 

Peck  v.  Bank  274,  275 

v.  Botsford  4,  123,  190 

v.  Cheney  7 

v.  Hurlbut  154 

v.  Mallams  172,  226 

v.    New   York   &    Liverpool  S. 

Co.   106,  no,  115,  120,  141,  27S 

v.  Randall  6,  117,  240,  251 

v.  Ward  266 

Peden  v.  Cavins  281 

v.  Chicago,  &c.  Ry.  Co.  180 

Pederick  v.  Searle  269,  271 

Pedrick  v.  Saunderson  199 

Peebles  v.  Mason  68 

Peck  v.  Wheaton  41 

Peele  v.  Cheever  271 

Peerless  v.  Waiertown  11 

Pegram  v.  Stoltz  7 

v.  Williams  8 

Pegues  v.  Warley  271 

Peirce  v.  Peirce  280 

Pekin  v.  Reynolds  142 

Pellew  v.  Winford  Hundred  54. 

Pells  v.  Snell  247 

Pemberton  v.  Plait  173 

Pemental  v.  San  Francisco  289 

Pena  v.  Vance  96,  115 

Pender  v.  Jones  235 

Pendergrast  v.  Foley  6,  208,  25x 

v.  Oullett  238,  240,  200 

Penfield  v.  Chesapeake  R.  R.  Co.     245, 

247 

Penley  v.  Beacon  Ass.  Co.  47 

v.  Waterhouse  2J.5 

P    11       Crawfor  1  68,  71,72 

7'.     (/I    \\       I  173 

t.  Weston  2-7 

II  v.  Chan  r> 

Pennepacker  v.  \'>  nnepacker  4> 

Pennim an  v,  Kotch 

"inton  19 

I'lat 


SECT. 

Pennock  v.  Dialogue  6 

v.  Freeman  274 

v.  Hart  290 

Penn.  Co.  v.  Piatt  61 

Penn.  R.  Co.  v.  Breckenridge  258 

Penny  v.  Brice  190,  193 

v.  Watts  195 

Penobscot  R.  R.  Co.  v.  Mayo  158,  276 

Penrose  v.  King  29 

Pensacola  &  A.  R.  Co.  v.  Hackson     61 

People  v.  Burgess  54 

v.  Chapin  15 

v.  Everest  58 

v.  Gilbert  2,  52 

v.  Irwin  236 

v.  Kendall  183 

v.  Lincoln  19 

v.  Livingston  262 

v.  Lord  n,  13 

v.  Newaygo  Co.  Judge  n 

v.  Oran  200 

v.  Supervisors  n 

v.  Supervisors  of  Columbia  n 

v.  Supervisors  of  Ulster  ir 

v.  Ulrich  55 

v.  Wayne  Co.  Judge  n 

v.  Wemple  164 

v.  Wood  172,  222- 

Peoria  Fire   &    Mar.    Ins.    Co.  v.    Hall 

42,  48 

Peoria  Ins.  Co.  v.  Whitehill  42 

Pepper  v.  O'Dowd  256 

Peralta  v.  Gionochio  265 

Perham  v.  Raynal  285 

Perkins  v.  Cartmell         35,  58,  199,  212 

v.  Currier  60 

v.  Governor  265 

v.  Guy  7,  8,  10 

v.  Hart  25 

v.  Litilefield  119,  1  \U 

t.  West  Coast  Lumber  Co.  28? 

P-rlev  v.  Little  64,  68 

Perry's  Estate,  Re  86 

Perry  v.  Chesley  277 

v.  Craig  58,  60 

t.  F.dwards  173 

t.  Jenkins                              6,  190,   194 

t.  Lewis  8 

t.  M  1 1  ston  235 

o.  Mcllenry  201 


TABLE   OF   CASES. 


lxxix 


Perry  v.  Munger 
Persons  v.  Jones 
Peters  v.  Barnhill 

v.  Brown 

v.  Delaplaine 

v.  Elkins 
Peterson  v.  Cobb 

v.  Ellicott 

v.  McCullough 


SECT. 

188 

144" 
145 

65,  68,  71,  79 

24,  58 
221 

64 

6S 

257.258 

Petit  v.  Flint  &  Pere  Marquette  R.  Co. 

259 

Petre  v.  Petre  275 

Petrie  v.  Mott  71 

Pettengill  v.  Patterson  188 

Pettingill   v.  Pettingill  igq 

Pettiward  v.  Prescott  184 

Peugnet,  Re  12 

Peyton  v.  Barton  267 

v.  Carr  188 

v.  Smith  58,  256 

Phalen  v.  Clark  58 

v.  Cook  58 

Phares  v.  Walters  12,  58 

Phelan  v.  Douglass  54 

v.  Iron  Mountain  Bank  142 

Phelps  v.  Patterson  121 

v.  Sleeper  68,  70 

v.  Stewart  68.  73,  77 

v.  Taylor  26=; 

v.  Williamson  68,  77 

v.  Wood  296 

Philadelphia,  &c.  Trust  &  Ins.  Co. 

v.  P.  &  R.  R.  R.  Co.  58 

Philadelphia  v.  Passenger  R.  R.  Co.   ti 

Philipo  v.   Munnings  199,  205,  2T4 

Philippi  v.  Philippi  200,  213 

Phillips  v.  Beal  18 

v.  Belden  280 

v.  Bradley  120    121 

v.  Broadley  89,  121 

v.  Cage  16 

v.  Gregg  26ft 

v.  Holm  an  200 

v.  Mah^n  1 15 

v.  Phillips  67,  bS,  72 

v.  Pope  4 

v.  Rogers  1 18 

v.  Roth  well  215 

v.  Sinclair  225 

v.  Union  Central  L.  Ins.  Co.         42 


i  E(     !  . 

Phoenix  v.  Gardner  236 

Phoenix  Ins.  Co.  v.  Belt  Ry.  Co.  42 

v.  Rad  Bila  Hora  Lodge  42,  51 

v.  Underwood  43 

Phoenix  Warehousing  Co.  v.  Badger  150 

Piatt  :'.  Oliver  30,  200 

v.  Smith  240 

v.  Valtier  12,  59,  60,  200,  213 

Pi:  kard  v.  Valentine  132 

Pickering  v.  Stafford  205 

v.  Stamford  199 

Pickett  v.  Ford  188 

v.  King  99.  iot 

v.  Leonard  101 

Picot  v.  Bates  35,  199 

Picquet  v.  Curtis  130 

Pierce  v.  Brown  221 

v.  Lacy  35 

v.  McClellan  59 

v.  Robinson  236 

v.  Seymour  77,  78,  86 

v.  Tobey  11 

Piggott  v.  Rush  2,  16,  190,  241 

Pigot  v.  Davis  30 

Pike  v.  Warren  285 

Pilcher  v.  Tlinn  58 

Pillow  7).  Roberts  4 

Pillsbury  v.  Moore  266 

Pincke  v.  Thornycroft  58 

Pinckney  v.  Burrage  6 

Pindall   v.  Marietta  Bank  no 

Pindell  v.  Mulliken  58 

Pinkerton  v.  Bailey  79,  81 

v.  Walker  200 

Pinkham  v.  Pinkham  282 

Pinkston  v.  Taliaferro  145 

Piriney  v.  Fellows  201 

Pinnock  v.  Clough  201 

Pinson  v.  Ivey  200,  208,214 

Piper  v.  Hoard  276 

v.  Sloneker  -70 

Pipher  v.  Lodge  200,  212 

Pipkin  v.  Hewlett  6 

Pitman  v.  Bump  n 

v.  Hooper  27 

Pitt  v.  Lord  Dacre  f    62 

Pitlam  v.  Foster  79 

Pitts  v.  Holmes  139 

v.  Hunt  288 

Pittsburg,  &c.  R.  Co.  v.  Bemis  294 


lxxx 


STATUTES   OF   LIMITATION. 


SECT. 

SECT. 

Pittsburg,  &c.  R.  Co.  p. 

3yers 

Il8 

Porter  v.  White 

236 

v.  Hine 

y 

■    194 

Porterfield  v.  Butler 

200 

v.  Plummer 

141 

,    I50 

Portland  Bank  v.  Maine  Bank 

54 

v.  Stickley 

257 

Portlock  *.  Gardner 

58 

p.  Ryers 

Il8 

Post's  Estate,  In  re 

206 

Pitzer  v.  Burns 

5.  59 

,    229 

Poston  71.  Smith 

247 

p.  Harmon 

145 

Pott  v.  Clegg 

17 

79 

142 

Place  v.  Union  Ex.  Co. 

51 

Potter  v.  Douglass 

163 

218 

Planck  v.  Anderson 

I7S 

v.  Martin 

7 

Planters'  Bank  v.  Union 

Bank 

142 

v.  Stransky 

222 

223 

Plaster  v.  Grabeel 

259 

Potts  v.   Gilbert 

269 

271 

Plato  p.  Roe 

236 

v.  Smith 

173 

Piatt  v.  Piatt 

60 

Pottsgrove  Twp.   v.  Penn. 

&  S 

.  V. 

Playfair  v.  Cooper 

199 

R.  Co 

61 

Plumer  v.  Harper 

182 

Powell  v.  Bagg 

182 

p.  Plumer 

265 

v.  Koehler 

245 

Plummer  v.  Erskine 

no 

v.  Mil  bank 

82 

Poe  v.  Conway 

65 

v.  Murray 

60 

p.  Foster 

151 

v.  O'Neill 

276 

Poignard  v.  Smith 

256, 

258. 

259 

v.  Smith 

145 

Poile  v. 

1  go 

Power  v.  Hathaway 

8 

Poillon  v.  Lawrence 

124, 

245 

z\Kitching 

259 

Poindexter  v.  Ravvlings 

86 

v.  Telford 

11 

Polk  v.  Beaumont  Pasture  Co. 

257 

Powers,  Re 

199 

Pollard  v.  Barnes 

182 

v.  Council  Bluffs 

180 

p.  Scears 

188 

v.  Manhattan  El.  R.  R 

.  C. 

6r 

v.  Tait 

12 

Poynder  v.  Bluck 

87 

Pollock  v.  Hoag 

146 

Pratt  v.  Canfield 

260 

Polly  p.  McCall 

181. 

182 

v.  Huggins                    21 

,  35 

65, 

222 

Pomfret  p.  Ricroft 

173 

p.  Northam 

58 

v.  Windsor 

200, 

203 

p.  Page 

178 

Ponce  v.  McEloy 

119 

p.  Skolfield 

221 

Pond  p.  Gibson 

7 

p.  Svvaine 

221 

v.  Williams 

96. 

IOI, 

no 

v.  Weyman 

2S0 

Ponder  p.  Carter 

145 

Pray  v.   Garcelon 

64,  6S 

,  73 

Pool  p.  Relfe 

78 

v.  Pierce 

258 

Pope  v.  Biggs 

265 

Preeble  v.  Maine  Cent.  R. 

Co. 

254 

v.  Bowman 

145 

Prenatt  v.  Runyon 

100, 

278 

p.  Boyd 

188 

Prentice  z>    Dehon 

11 

p.  Brass  field 

237 

v.  Elliott 

211 

v.  Hammer             255, 

257, 

259. 

267 

Presbrey  v.  Williams 

54, 

124 

Portage  Co.  Ins.  Co.  p.  St 

ukey 

42 

Prescott  v.  Hubbell 

46, 

275 

v.  West 

42 

p.  Johnson 

257 

Porter  v.  Androscoggin  R 

.  R. 

Co. 

35 

p.  Nevers 

256 

v.  Blood                    68, 

105, 

112, 

115 

p.  Prescott 

256 

p.  Chicago,  &c.  Ry.  C 

0. 

278. 

280 

v.  Read 

162 

v.  Cummings 

6 

Presidio  County  p.  Shock 

121 

v.  Hill 

64 

,  68, 

266 

Preslar  p.  Stallsworth 

145 

v.  Nelson 

2 

Presley  v.  Davis 

200 

v.  Rutland  Bank 

201  1 

p.  Holmes 

259 

TABLE   OF   CASES. 


lx: 


Preston  v.  Briggs 

1.83 

v.  Day 

188 

v.  Preston 

59,  60 

Prevat  v.  Lawrence 

265 

Prevo  v.  Lathrop 

118 

v.  Walters 

208 

Prevosl  v.  Gratz 

200, 

214, 

275 

v.  Johnson 

258, 

259 

Prewett  v.  Buckingham 

200 

v.  Runyan 

278 

Price  v.  Berrington 

275 

v.  Copner 

222, 

225, 

235 

v.  Emerson 

145 

v.  Hopkins 

11 

v.  Jackson] 

26S 

v.  Mulford 

200 

v.  Nixon 

137a 

v.  Price 

7? 

,  87, 

120 

v.  Slaughter 

241 

v.  Tucker 

54 

Prideaux  v.  Webber 

6 

Pridgen  v.  Hill 

277 

Priest  v.  Deaver 

117 

v.  Watkins 

-195 

v.  Wheelock 

221 

Printup  v.  Mitchell 

24 

Prior  v.  Horniblow 

4. 

189, 

199 

Pritchard  v.  Chandler 

t39 

v.  Draper 

211, 

285 

v.  Hamell 

68 

v.  Spencer 

i] 

.  12 

Proctor  v.  Bigelow 

273 

7'.  Cowper 

235 

v.  Marshall 

no 

v.  Newtown 

173 

Proprietors  v.  M'Farland 

260 

Protection  Life  Ins.  Co.  v 

Pal 

mer 

54 

Protector,  The 

6 

Proud  v.  Proud 

199. 

205 

Provident  Loan  Trust  Co. 

y.Wolcott 

289 

Pruyn  v.  Milwaukee 

127 

Pryke  v.  Hill 

72 

Pryor  v.  Ryburn 

252 

v.  Wood 

172 

Puckel  ?/.  Moore 

7 

Pugh  v.  Bell 

200, 

214 

v.  Duke  of  Leeds 

54 

Pulteney  v.  Warren 

5^ 

.  63 

Purcell  v.  Wilson 

266 

Purdon  v.  Purdon           68, 

104, 

105, 

190 

Purdon  v.  Seligman 
Purdy  v.   Austin 

v.  Purdy 
Pursell  v.  Fry 
Purtz  v.  Cuester 
Putnam  v.  Bowker 

71.  Dike 

v.  Foster 

v.  Tinkler 
Pyle  v.  Beckwiih 

v.  Maulding 

v.  M'Monaghe 

Q- 

Quackenbush  v.  Ehle 
Quantock  v.  England 
Quarles  v.  Littlepage 
Queen,  The 

Queen  of  the  Pacific, The 
Quimby  v.  Buzzle 

v.  Putnam 
Quincey  v.  Sharpe 
Quincy  v.  Quincy 
Quint  v.  Little 
Quynn  v.  Carroll 


SECT. 

274 
68,  69,70,  71 

97 
141 
265 
267 

8 

79 
60 

274 
54 
25 


120 
65 
79 
27 
27 

139 

145,  288 

68 

199 

225 
97,  190 


R. 

Rabsuhl  v.  Lack 
Rackham  :.  Marriott 
Raddam  v.  Morley 
Raeder,  In  re 
Raefle  v.  Moore 
Raegener  v.  Medicus 
Rafferty  v.  King 
Ragan  v.  Walker 
Ragland  v.  Justices 

v.  Morton 
Rahtjen's    American   Composition 

Co.    v.  Holzappel's    Composition 

Co. 
Rahway  Nat.  Bank  v.  Carpenter 
Railroad  Co.  v.  Durant 
Railway     Conductors'    Mut 

Ass'n  v.  Loomis 
Rakestraw  v.  Brewer 
Ralfe  v.  Pillaud 
Ralph  v.  Bay  ley 
Ralston  v.  Lothain 
Ramchamber  v.  Hammond 


141 
68,  76.  78 
230 
101 
124 
119 
222 
201 
221 
213 


58 
141 
200 


Aid 

42,  51 
226,  231 

S6 

259 
11 

277 


Ixxxn 


STATUTES   OF    I  IMITATION. 


Ramsay  v.  Deas 

7>.  Dozier 

v.  Warner 
Rand  v.  Rand 
Randall  v.  Bradley 

v.  Raab 

v.  Rich 
Randell  v.  Wheble 
Randolph  v.  Carlton 

v.  Ward 

v.  Ware 
Randon  v.  Toby 
Rank  v.  Hill 
Rankin  v.  Tenbrook 

v,  Woodworth 
Rannels  v.  Rannels 
Rantin  v.  Robertson 
Rashleigh  v.  Williams 
Ratcliffe  v.  Davis 

Rathbone  v.  Bradford 
Rathbuin   v.   Northern 

R.  Co. 
Rattoon  v.  Overacker 
Raudan  v.  Tobey 
.  Raux  v.  Brand 
Ravenscroft  v.  Frisby 
Rawlings  v.  Adams 
Rawson  v.  Fox 
Ray  v.  Barker 

v.  Bogart 

v.  Goodman 
Raymond  v.  Simonson 

v.  Stevenson 
Rayner  v.  Koehler 

v.  Lee 

v.  Pearsall 
Rea  v.  Minkler 
Read  v.  Boardman 

7.  Edwards 

v.  Eifert 

v.  Frankfort  Bank 

v.  Goodyear 

v.  Hurst 

v.  Johnson 

v.  Markle 

v.  Sturtevant 

v.  Thompson 

v.  Wilkinson 
Reade  v.  Reade 


SECT. 

200, 

215 

273 

I96, 

110 

54 

222, 

235 

240 

14, 

I/; 

2(>_ 

60 

76 

33 

25' 

56, 

120 

254 

173 

173 

22 

173 

II 

Central  R. 

250 

195 

68 

27S 

199 

188 

259 

259 

60 

203 

267 

119,  123 

200 

118 

195 

257 

60 

174 

no 

222 

259 

11 

258 

115 

101 

183 

127 

,  128 

259 

,  270 

68,  69 

18 

,  200 

SECT. 

Reading  v.  Gray 

173 

Reading  of  Judge  Trowbridge 

221 

Ready  v.  Thompson 

188 

Real  Estate  Bank  v.  Hartfield 

104 

Reardon   v.  Leary 

60 

Rector  v.  Conway 

188 

Rector,  &c.  v.  Vanderbilt 

149 

Reddick  v.  Long 

254 

Redfield  v.  Parks               52,  to, 

254.  259 

Redwood  v,  Reddick 

200,  212 

Reed  v.  Clark 

4.  41 

v.  Field 

267 

v.  Hurd 

no 

v.  Ins.  Co. 

27 

v.  Miller 

40« 

v.  Reed 

1 

v.  Shepley 

265 

v.  Smtih 

280 

v.  West 

59,  60 

Reeks  v.  Postlethwaite 

235 

Reeves  v.  Butcher 

126 

v.  Capper 

233 

v.  Corell 

79 

v.  Dougherty 

58 

v.  Hearne 

77 

v.  Nye 

118 

v.  Pulliam 

145 

Reg.  v.  Un.  of  Oxford 

245 

Regis  v.  Hebert 

171 

Reid  v.  Anderson 

271 

v.   Dickons 

107 

v.  Supervisors,  &c. 

164 

Reigal  v.  Wood 

231 

Reigart  v.  White 

146 

Reigne  v.  Desportes 

190 

Reitz  v.  Reitz 

123 

Reizenstein  v.   Marquardt 

118,  212 

Reland  v.  Eckert 

261 

Relf  v.  Eberly 

252 

Relfe  v.  Relfe 

232 

Relyea    v.     Tomahawk     Paper     & 

Pulp  Co. 

1,  n 

Remsen  v.  Wheeler 

164 

Renackowsky  v.  Water  Com'rs        7,  66 

Renard  v.  Brown 

221 

v.  Fiedler 

20 

Rennie  v.  Robinson 

265 

Rense  v.  Southard 

276 

Renshaw  v.  Herbert 

58 

TABLE    OF    CASES. 


lxx; 


xi  u 


Rensselaer,  &c.  Plank  Road  Co.  v. 

Barton  20 

Ren  wick  v.  Renwick  123 

Reppert  v.  Colvin  210,  285 

Republic,  Bank  of  ihe,   v.   Baxter     140 

v.  Mills  142 

Retzer  v.  Wood  7 

Rew  v.  Barber  20,  21 

v.  Pettet  91 

Rex  v.  Adderley  54,  55 

v.  Edington  221 

v.  Peckham  55 

Rexford  v.  Marquis  1S2 

Reynolds  v.  Baker  1 

v.  Collins  70 

v.  Doyle  133,  136 

v.  Green  164,  172,  225,  229,  235 

v.  Hamilton  190 

v.  Johnson  137 

v.  Lyon  County  40a 

z/.  Sumner  212 

Rhind  v.  Hyndman  11S 

Rhines  v.  Evans  11S,  122,  123 

Rhode  Island  v.  Massachusetts     52.  5S 

Rhodes  v.  Smethurst  6,  194 

v.  Turner  213 

Rhoton  v.  Mendenhall  245,  276 

Ricard  v.  Williams  58 

Rice  v.  Burt  276 

v.  Hosmer  154 

v.  Lowan  243 

v.  White  274 

v.  Wilder  68 

Rich  v.  Niagara  Sav.  Bank         101,  105 

v.  Ricketts  40a 

Richard  v.  Bent  173,  174 

Richards  v.  Allen  153 

v.  Bickley  8,  16,  34 

v.  II  an  nay  70 

v.  M'Kie  203 

v.  Richards  131,  190 

Richardson  v.  Allen  6 

v.  Barrick  236 

v.  Bleight  282 

v.  Broughton  203,  260 

v.  Chanslor  289 

v.  Chicago  &  Alton  Ry.  Co.  42 

v.  t).   M.  Osborne  &  Co.  40a 

v.  Gregory  211 

v.  Harvey  265 


SECT. 

Ricnardson  v.  Kuhn  219 

v.  Pond  182 

v.  Thomas  6,  71,  73,  79,  85,  99,  101 

v.  Younge  225,  229 

Richman  v.  Richman  119,  125 

Richmond,  Ex  parte  79,  190 

Petitioner  70, 

v.  Aiken  222 

v.  Fuqua  68 

v.  Irons  149,  289 

v.  Maryland  Ins.  Co.  4 

Ricker  v.  Blanchard  235 

v.  Hibbard  263 

Rickert  v.  Gristwite  172 

Ridd  v.  Moggridge  96 

Riddle  v.  Backus  120 

v.  Beattie  20 

v.  Kreinbiehl  282 

v.  Philadelphia  269 

v.  Whitehill  200,  211 

Riddlesberger  v.  Hartford  Fire  Ins. 

Co.  44 

Rider  v.  Maul  266 

Ridgeley  v.  Crandal  25 

v.  Steamboat  Reindeer  11 

Ridglj  v.  Ogle  25c, 

Ridgeway  v.  Halliday  200 

Ridley  v.  Hettman  58 

Riggs  v.  Dooley  6,  251,  259 

v.  Riley  254 

v.  Roberts  98,  116 

v.  Swan  201 

Rigley,  Re  245 

Riley  v.  Jameson  257,  267 

Ringo  v.  Brooks  69,  79 

Ringold  v.  Cheney  257 

Ripley  v.  /Etna  Ins.  Co.  42 

v.  Astor  Ins.  Co.  49,  51 

v.  Corsvin  7 

v.  Withee  143a 

v.  Yale  260 

Risch  v.  Wiseman  254 

Riser  v.  Snoddy  190 

Rilter's  Appeal  188 

Ritter  v.  Ulman  59 

Rivers  v.  Thompson  259 

v.  Washington  7 

River  Steamer  Co.,  In  re  131 

Roach  v.  Caraffa  212 

v.-  New  York  &  Erie  Ins.  Co.        42 


Ixxxiv 


STATUTES   OF    LIMITATION. 


SECT. 

Robarts  v.  Robarts 

84,    278 

Robb 

v.  Day 

276 

t 

.  Harlan 

II 

Robb 

ins  v.  Farley 

68 

V 

Harvey 

7.   123 

V 

Otis 

64,  77 

Roberts  v.  Berdell 

183,  212 

V 

Clark 

181,  1S2 

V 

Ely 

141 

V 

Littleheld                      222 

229,  235 

V 

McMahan 

236 

V 

Moore 

6 

V 

Morgan 

266 

V 

Pillow 

4.  259 

V 

Read 

178 

V 

Riddle 

146 

V 

Sykes 

53 

V 

Totten 

280 

Robertson  v.  Alford 

243 

v. 

Blaine  County 

36,  39 

V. 

Cates 

11S 

V. 

Du  Bose 

60 

V. 

Dun 

212 

V. 

Maclin 

214 

V. 

Pickerell 

151 

V. 

Stuhlmiller 

223 

V. 

Wood 

259 

V. 

Wurdeman 

251 

Robie 

v.  Briggs 

no 

v. 

Flanders 

256,  273 

Robinson  v.  Alexander 

210 

v. 

Allen 

7 

v. 

Allison 

271 

v. 

Campbell 

275 

v. 

Doolittle 

no 

v. 

Farrelly 

236 

v. 

Fife                                222, 

225,  235 

v. 

Fraley 

6S 

v. 

Gardiner 

17 

v. 

Harkin 

145 

v. 

Hodge 

188 

V. 

Hook                     59,  200, 

212,  238 

V. 

Imperial,  &c.  Mining  Co.        250 

V. 

Jewett 

200 

V. 

Kline 

263 

V. 

Lake 

261 

V. 

Moore 

179 

V. 

Phillips 

263 

V. 

Pierce 

259 

V. 

Prescott 

34 

Robinson  v.  Robinson  24,  200,  266,  296 

v.  State  276 

v.  Swett  259,  267 

v.  Taylor  210 

Robson  v.  Jones  205,  212 

Roby  v.  Colehour  60 

Roch  v.  Callen  199 

Rochdale  Canal  Co.  v.  King  62 

Rock  v.  Dennett 
Rockport  v.  Walden 
Rockwell  v.  Servant 
Rockwood  v.  Brown 
Roddam  v.  Morley 
Rodgers  v.  Byers 

v.  Nowill 

v.  Rosser 
Rodman  v.  Hedden 
Rodrigue  z>.  Fronty 
Roe  v.  Swart 
Roffey,  Ex  parte 
Rogan  v.  Walker 
Rogers,  Re 

v.  Allen 

v.  Anderson 

v.  Brown 

v.  Burns 

v.  Druffel 

v.  Durant 

v.  Handy 

v.  Hillhouse 

v.  Home  Ins.  Co. 

v.  Humphreys 

v.  Madden 

v.  Moore 

v.  Murray 

v.  Quinn 

v.  Sanders 

v.  Southern 

v.  Wilson 

v.  Win  ton 
Roland  v.  Logan 
Rolfe  v.  Gregory 
Rolleston  v.  Dixon 
Romine    v.  Romine 
Roosevelt  v.  Mark 


Root  v.  Bradley 
v.  McFcrrin 
Roots  v.  Mason 
Rosborough  v.  Albright 


16 

11 

59,  221,  224,  225 

139 
229 

77 

61 

124 

145 

7i 

295 

59.  68 

60,  236 

41 

1S2 

285,   288 

6,  251 

172 

295 

12  + 

11 

6,  117,  251,  259 

289 

221 

25S 

221 

201 

64 

60 

65.  7i 

188 
188 

295 
20G 
190 

145 
58,  68,  69,  99, 
101,  200,  285 
n 

259 
277 

154- 


TABLE   OF   CASES. 


lxxxv 


SECT. 

SECT. 

Roscoe  v.  Hale 

7i,  79 

,85, 

IOI 

Ruggles  v.  Keeler 

8 

Rose  v.  Bryant 

"5 

Rumball  v.  Bull 

124 

v.  Davis 

265 

Rumsey  v.  Settle's 

Estate 

68 

v.  Gould 

199. 

283 

Rundle  v.  Allison 

58 

Roseboom  v.  Billington 

I05, 

"5 

Rung  v.  Schoneber 

ger 

258 

Rosenbaum,  Re 

164 

Runner's  Appeal 

2 

Rosenthal  v.  Walker 

275 

Runyan  v.  Mersereau 

221 

Ross,  Ex  parte 

202 

Rupert  v.  Dantzer 

295 

v.  Gould 

263 

Rush  v.  Barr 

215.  274 

v.  Jones 

6 

v.  Fales 

79.  90 

v.  Lafayette.  &c.  R. 

R.  Co 

150 

Rushing  v.  Rushin 

S 

200 

v.  Luther 

289 

Russ  v.  Cunningham 

86 

v.  Mitchell 

222, 

223 

Russel  v.  Gass 

69 

71,  80 

v.  Norvell 

322, 

235, 

236 

v.  Southard 

275 

v.  Ross 

68 

,   79 

Russell  v.  Allard 

265 

v.  Veech 

256 

v.  Barton 

+ 

Rotch  v.  French 

20 

v.  Copp 

64,  70 

Roth  v.  Holland 

199 

v.  Davis 

95, 

256,  2 

57.  268 

v.  Palmer 

21 

v.  Erwin 

265 

Rotheram  v.  Green 

182 

v.  Gilmore 

21 

Rothery  v.  Munnings 

89 

121 

v.  Mandell 

259 

Round  v.  Bell  199 

Rous  v.  Walden  117 

Routledge  v.  Ramsay  68,  72,  87,  93,  95 

Rowan  7.  Chinoweth  281 

v.  Kirkpatrick  188 

Rowcroft^.  Lomas  68,  85 

Rowden  v.  Murphy  60 

Rowe  v.  Atwater  115 

v.  Thompson  137 

v.  Young  130 

Rowell  v.  Lewis  41,  72 

v.  Patteson  6 

Rowland  v.  Williams  271 

Rowley  v.  Rowley  282 

v.  Tompkins  172 

Rowsell  v.  Morris  195 

Royse  v.  Turnbaugh  237 

Royer  v.  Benlow  257,  259,  261,  267,  269 

Roysler  v.  Granville  Co.  86 

Rucker  v.  Frazier  68,  96,  104,  286 

v.  Hannay  73 

v.  Harmony  71 

Ruckmaboye  v.  Mottichund  8 

Rudd  v.  Sewell  61 

Rudy  v.  Wolf  146 

Ruff  v.  Bull  117,  124,  251 

Ruffiri  v.  Commissioners  142 

Rugan  v.  Sabin  239 

Ruggles  v.  Keele  281 


v.  Polk  County  Abstract  Co.       2S9 

v.  Slaton  269 

v.  Titus  265 

Rustomjee  v.  The  Queen  52 

Rutherford  v.  Hobbs  271 

Rutin  v.  Robertson  173 

Rutledge  v.  Smith  201 

Ryal  v.  Morris  79 

Ryall  v.  Rolle  21 

Ryan  v.  Flint  r 

v.  Jones  188 

v.  Parker  58 

Ryder  v.  Loomis  200 

v.  Manzell  265 

v.  Wilson  12 

Ryer  v.  Stock  well  119. 

Ryerson  v.  Eldred  265 

Ryerss  v.  Far  well  265 

Ryland     v.    Commercial    &    Sav. 

Bank  149 

Ryus  v.  Gruble  154 


Sacia  v.  De  Graaf  252 

Sadowsky  v.  McFarland  209 

Safford  v.  Barney  278 

Sage  v.  Ensign  116 

Sager  v.  Warley  199 

Sailor  v.  Hertzog  269,  270 


Ixxxvi 


STATUTES   OF    LIMITATION. 


SECT. 

St.  Albans  v.  Failey  no 

St.  Charles  County  v.  Powell  53 

St.  John  v.  Garrow  79 

St.  Louis  v.  Gorman  257,  259,  271 

St.  Louis,  &c.  Co.  v.  Souland  20 

v.  Brown  7 

St.  Louis,   &c.  Ry.  Co.  v.  Biggs         1S0 
v.  Sage  276 

St.  Louis  Public  Schools  v.  Risley  258 
St.  Louis  University  v.  McConn  263 
St    Mary's  Church  i>.  Miles  172 

Si.  Paul's  Church  v.  Atty.-Gen.  205,  276 
St.  Paul  German  Ins.  Co.,  Re  S6 

St.  Paul,  &c.  Ry.  Co.  v.  Sage  276 

Sale  v.  McLean  201 

Salford  v.  Lancashire  County  Coun- 
cil 21 
Salisbury  v.  Black                                   175 
Salmon  v.  Bradshaw                              173 
v.  Vallejo                                            173 
Salmons  v.  Davis                                     259 
Salt  Springs  Bank  v.  Barton  54 
Salve  v.  Ewing                                          274. 
Sambs  v.  Stein  6 
Sample  v.  Coulson                                   201 
v.  London  &  L.  F.  Ins.  Co.            42 
Sampson  v.  Burton                                  146 
v.  Sampson                                    II,  12 
Sam  Slick,  The                                  6,  252 
Samuel  v.  Zachary                                  145 
Sanborn  v.  Cole                                        no 
v.  Gale                                        275,  276 
v.  Neilson                                           185 
v.  Stetson  4 
Sanchez  v.  Dow                                   58,  60 
Sanders  v.  Benson                                     16 
v.  Coward                119,  163,  175,  176 
v.  Hamilton                                         21 
v.  Jacob                                                 58 
v.  Norton                                              54 
v.  Riedinger                    255,  256,  257 
v.  Robertson                                      190 
Sanderson  v.  Milton  Stage  Co.       96, 

97,  104 
v.  Olmsted  172 

Sandford  v.  Allen  146 

v.  Clark  77 

v.  Dick  290 

Sands  v.  Annesley  129 

v.   Burl  2r)4 


SECT. 

Sands  v.  Campbell  6 

v.  Gelston  64,  68,  69,  70,  285 

r\  Lilienthal  129 

v.  Lyon  54 

v.  St.  John  7,  129 

Sanford  v.  Clark  73 

7'.  Hayes  68,  97,  105 

v.  Lancaster  118 

v.  Mickles  285 

v.  Wicks  188 

Sanford's  Case  6 

San  Francisco  v.  Fulde  271 

Sanger  v.  Nightingale  7,  41 

v.  Upton  150 

San  Rosa  Nat.  Bank  v.  Barnett         149 

Sarah  Ann,  The  27 

Sarell  v.  Wine  190 

Sargent  v.  Bigelow  60 

v.  Franklin  Ins.  Co.  20 

Sasser  v.  Davis  239 

Satterlee  v.  Fraser  123 

v.  Malthewson  11,  265 

Sattherthwaite  v.  Abercrombie  245,  247 

Saunders  v.  Annesly  270 

v.  Catlin  58 

v.  Harris  201 

v.  Lord  Annesley  58 

v.  Merryweather  265 

Savage  v.  Aldren  119,  131 

v.  Medbury  129 

Savile  v.  Jackson  176 

Sav.  Inst.  v.  Littlefield  98 

Sawyer  v.  Boston  7 

v.  Kendall  271 

v.  Smith  199 

v.  Tappan  no,  123 

Saxlehner  v.  Eisner  &  Mendelson 

Co.  59 

Saxton  v.  Hunt  259 

Sayles  v.  Oregon  Ry.  Co.  40a 

v.  Tibbitts  200 

Sayre  v.  Townsend  201 
Scaife   v.  Western   North   Carolina 

Land  Co.  25S 

Scales  v.  Jacob  65,  77 

Scantlin  v.  Allison  173 

Scarborough  v.  Dugan  n 

Scarlett  v.  Hunter  219 

Scarpellini  v.  Atcheson  131 

Schaeffer  v.  Hoffman  86 


TABLE   OF   CASES. 


IXXXVll 


SECT. 

Schall  v.  Eisner  278 

v.  Williams  Valley  R.  Co.  269 
Schenectady,   &c.   Plank   Road  Co. 

v.  Thatcher  150 
Schindel  v.  Gates                   105,  285,  2S7 

Schlicker  v.  Hemenway  193 

Schlink  v.  Maxton  199 

Schlosser  v.  Lesher  290 

Schmidt  v.  Pfau  68 
Schmucker  v.  Sibert      165,  222,  223. 

230,  235 

Schneider  v.  Botsch  257,  263 

v.  Hutchinson  52,  258 

Schoch  v.  Garrett  120 

Schoener  v.  Lissauer  145 

Schofield  v.  Iowa  Homestead  Co.       173 

v.  Woolley  17 

Scholey  v.  Walton  102,  iqo 

Schoneman  v.  Fegley  2S7 

School  Directors  v.  Georges  53 

School  District  v.  Blakeslee  260 

v.  Xenia  Bank  101 

v.  Schreiner  5S 

Schoonover  v.  Vachon  120 

Schrack  v.  Zubler  271 

Schroeder  v.  Ins.  Co.  289 

z>.  Johns  119 

Schuberth  v.  Schillo  41 

Schultz  v.  Arnot  265 

Schuu  v.  Fitzwalter  271 

Schuylkill,    &c.    R.    R.    Co.   v.  Mc- 

Creary  270 

Schwarlz  v.  Kuhn  258 

Scott  v.  Britton  236 

v.  Delany  259,  267 

v.  Elkins  261,  262 

v.  Haddock  6,  25I 

v.  Hancock  188 

v.  Jones  199,  205 

v.  Mcintosh  24 

v.  Nichols  145 

v.  Osborne  119 

v.  Synge  104 

v.  Twiss  173 

v.  Ware  86 

v.  Warner  20 

>covel  r.  Gill  65 

Seoul  r'#  Scovil  1 33 

Scoville  v.  Thayer  150 


Scranton   Gas   Co.  v.  Lackawanna 

Coal  Co.  178 

Scroggin  v.  McClelland  124 

Scruggs  v.  Scruggs  258 

Scull  v.  Raymond  27 

v.  Wallace  68,  190 

Sea  Ins.   Co.  v.  Stebbins  221 

Seago  v.  Dean  280 

Seagram  v.  Knight  189 

Seals  v.  Cashin  221 

Seaman,  Ex  parte  08 

v.  Browning  173 

v.  Clarke  30 

Searight  v.  Craighead  285,  287 

Searle  v.  Barrington  115 

Searles  v.  Lum  30,  280 

Sears  v.  Shafer  7,  275 

Seattle  Nal.  Bank  v.  Pratt  149 

Seaver  v.  Lincoln  289 

Seaward  v.  Lord  69,  77 

Sedden  v.  Senate  173 

Sedgwick  v.  Girding  72 

v.  Sanborn  149 

Seig  v.  Acord  190 

Seignorett  v.  Noguire  54 

Seitz  v.  Seitz  276 

Seitzinger  v.  Weaver  173 

Selby  v.  Chute  173 

Selden  v.  Preston  6 

Selleck  v.  Turnpike  Co.  no 

Sellman  v.  Bowen  273 

Selltey  v.  Selltey  287 

Semmes  v.  Boykin  no 

v.  City  Fire  Ins.  C.  43 

v.  Hartford  Ins.  Co.  6 
v.  Magruder                     97,  188,  190 

Serr.ple  v.  Cook  261 

Sennott  v.  Horner  70,  77 
Senseman  v.  Hershman             6S,  70,  88 

Sepulveda  v.  Sepulveda  258 

Serrell,  Ex  parte  172 
Service  v.  Farmington  Sav.  Bank  294 
Severn  and  Wye  and  Severn  Bridge 

Ry.  Co.,  ///  re  21 

Sewall  v.  Valentine  117,  194 

Seward  v.  Hayden  54,  124 

Sexton  v.  Zett  179 

Seymour  v.  Carli  263 

v.  Deming  n 
v.  Freer                              ig,  200,  212 


Ixxxviii 


STATUTES   OF   LIMITATION. 


SECT. 

SECT. 

Seymour  v.  Street 

247 

Sheppard  v.  Cook 

65 

Shackelford  v.  Staton 

289 

v.  Duke 

4o 

Shackett   v.  People's   Mut. 

Benefit 

Sheppard's  Estate 

41. 

IOI 

Society 

42 

Sheppards  v.  Turpin 

200, 

215 

Shackleford  v.  Douglass 

65 

Shepperd  v.  Murdock 

7o, 

235 

v.  Smith 

259 

Sherman  v.  Jacobs 

77 

Shaddick  v.  Bennett 

68 

v.  Wakeman 

71 

Shadwell  v.  Hutchinson 

182 

v.  Western,  &c.  Co. 

"7, 

194 

Shaffer  v.  Lowry 

26g 

Sherrill  v.  Hopkins 

8 

v.  Shaffer 

"5 

Sherrod  v.  Bennett 

68,: 

Shally  v.  Stahl 

267 

Sherry  v.  Frecking 

256 

Shannon  v.  Dunn 

238 

Sherwood  v.  Dunbar 

145. 

171 

Shapleigh  v.  San  Angelo 

11 

v.  Haight 

no 

Shapley  v.  Garey 

55 

v.  Sutton 

58. 

222 

Sharkey  v.  Mansfield 

140 

Shewalter  v.  Bergman 

8 

Sharon  v.  Tucker 

11 

Shewen  v.  Vanderhorst 

18S 

Sharp,  Ex  parte 

18 

Shibla  v.  Ely 

200 

v.  Brandow 

255- 

262 

Shields  v.  Anderson 

275 

v.  Johnson 

269 

v.  Lozear 

221, 

26S 

v.  McGuire 

28g 

v.  Taylor 

30 

v.  Sharp 

58 

Shillaber  v.  Wyman 

195 

Shaver  v.  Radley 

200 

Shipley  v.  Shilling 

68 

v.  Woodward 

236 

Shipp  v.  Davis 

224 

Shaw  v.  Allen 

68 

v.  Miller 

171 

v.  Cook 

294 

Shiller  v.  Bremer 

64,  68,  70 

v.  Lambert 

77 

Shoecraft  v.  Beard 

118 

v.  Newell                      68 

77,  80. 

109 

Shoemaker  v.  Benedict 

286, 

287 

v.  Nicholay 

271 

v.  Smith 

201 

v.  Silloway                      i 

.  21,  65, 

118 

Shoenberger  v.  Adams 

202, 

281 

v.  Smith 

139 

Sholl  v.  German  Coal  Co. 

258 

v.  Stenton 

173 

Sholly  v.  Stahl 

259 

Sheafe  v.  Gerry 

229 

Shorick  v.  Bruce 

252 

Shearer  v.  Fowler 

20 

Short  v.  Bryant 

145 

Shearman  v.  Akins 

163, 

204 

v.  McCarthy  6,  66,  124, 

178, 183 

190 

Shed  v.  Brett 

I32, 

136 

Shortredge  v.  Check 

94 

Shedd  v.  Powers 

267 

Shreve  v.  Joyce 

190 

v.  Wilson 

no 

Shreves  v.  Leonard 

252 

Sheets  v.  Selden 

54.  55 

Shriver  ?>.  Garrison 

243 

Shelburne  v.  Robinson 

152 

v.  Shriver 

265 

Shelby  v.  Guy 

10, 

194 

Shuber  v.  Suter 

68 

v.  Shelby 

58 

Shubrick  v.  Adams 

1 

Sheldon  v.  Purple 

20 

Shuffleton  v.  Nelson 

271 

v.  Sheldon 

35,  "8. 

212 

Shullz  v.  Carter 

145 

v.  Weldman 

214 

v.  Elliott 

265 

Shellenberger  v.  Ransom 

275 

v.  Morette 

188 

Shclton  v.  Carrol 

265 

Shumate  v.  Williams 

in 

Shepard  v.  Martin 

265 

Shute  v.  Pacific  Nat.  Bank 

142 

S'lephard  v.  Little 

20 

Shutford  v.  Borough 

119 

Shepherd  v.  Thompson 

i,  4,  75 

,  86 

Shutts  v.  Fingar 

118 

Shepley  v.  Waterhouse 

2S^ 

Sibbering  v.  Balcarras 

58 

TABLE    OF   CASES. 


lxxxix 


SECT. 

Sibert  v.  Wilder 

79-  80 

Sibley  v.  Ellis 

181 

v.  Lambert 

68,  105,  in 

v.  Phelps 

115,  116 

v.  Stuhl 

146 

Sicard  v.  Davis 

7 

v.  Whale 

8 

Sichel  v.  Carrillo 

222,  230 

Sickles  v.  Ayres 

1IO 

v.  Mather 

277 

Sidvvell  v.  Mason 

68,  77.  7S 

Sigourney  v.  Drury  68, 

82,  84,  103, 

115,  145,  285,  286 
v.  Severy  139 

v.  Wetherell  112 

Sikes  v.  Quick  145 

Silsby    Manuf.    Co,   v.    New  York 
State  180 

Simmons  v.  Burlington,  &c.  Ry.  Co.     59 
v.  Jacobs  54 

v.  Lane  259 

v.  Nahant  256,  261,  267 

v.  Robertson  265 

Simmon?  Creek  Coal  Co.  v.  Doran     60 


Simms  v.  Smith 

200 

Simons  v.  Fox 

183 

v.  Steele 

146 

Simonton  v.  Clark 

69,  Ti 

,  78 

Simpson  v.  Coe 

182 

v.  Downing 

259 

v.  Margitson 

125 

v.  Va.  L.  Ins.  Co. 

42 

Sims    ^.Bardoner 

6 

v.  Brulton 

123, 

178 

v.    Canfield 

1, 

188 

v.  Everhardt 

6 

v.  Gay 

"7 

v.  Goudelock 

141 

v.  Hampton 

54 

Sinclair  v.  Bank 

179 

Singleton  v.  Moore 

59, 

215 

v.  Tovvnsend 

145 

Sinkler  v.  Turnpike  Co. 

150, 

151 

Sirdefield  v.  Price 

199 

Sitgreaves  v.  Farmers'  Bank 

22 

Skeet  v.  Lindsay 

72 

Skeffington  v.  Whitehurst 

6 

Skidmore  v.  Little 

132 

v.  Romaine 

4i 

Skillington  v.  Allison 

296 

Skinner  v.  Crawford  256,  263 

v.  Kilbys  173 

v.  Skinner  199 

v.  Smith  222 

Slack  7'.  Norwich  78 

Slade's  Case  2,  25 

Slark  v.  Starr  260 

Slater  v.  Commonwealth  11 

v.  Jepherson  257,  258 

v.  Rawson  173 

Slater  Mut.  Fire  Ins.  Co.,  Re  129 

Slaughter  v.  Fowler  259 

v.  Slaughter  163 

Slaymaker  v.  St.  John  201 

v.  Wilson  21,  22 

Sledge  v.  Clopton  240 

Slee  v.   Manhattan   Co.     222,   224, 

225,  236 

Sleeth  v.  Murphy  n 

Sleght  v.  Kane  124,  245 

Slicer  v.  Pittsburgh  Bank  222,  225 

Slingluff  v.  Ambler  54 

Sloan  v.  Sloan  68 

Slocum  v.  Riley  244 

Sluby  v.  Champlin  71,  77 

Small  v.  Clifford  266 

v.  Westchester  F.  Ins.  Co.  42 

Smallwood  v.  Smallwood  64,  69,  70 

Smead  v.  Williams  52 

Smeidel  v.  Lewellyn  146 

Smiley  v.  Fry  142 

Smith's  Estate  188 

Smith  v.  Act  on  199 

v.  Aylesworth  132 

v.  Bishop  274 

v.  Brown  59 

v.  Bryan  237 

v.  Burtis  6,  258,  259 

v.  Butler  294 

v.  Caldwell  286 

v.  Calloway  215 

v.  Camp  86 

v.  Cassidy  54 

v.  Chapin  269,  271 

v.  Charter  Oak  Ins.  Co.  6 

v.  Clay  58,  60,  61,  200,  214 

v.  Coon  ior 

v.  Crater  289 

z.  Crosby  8 

v.  Dagert  7 


xc 


STATUTES   OF    LIMITATION. 


SECT. 

SECT. 

th  v.  Dunham 

T39 

Smith  v.  Smith 

35.  199 

v.  Eastman      77,  78, 

85,  86,  92,  101 

v.  Spinolla 

8 

v.  First  Nat.  Bank 

142 

v.  Strahan 

201 

v.  Fiske 

175 

v.  Talbot 

73 

v.  Fly 

68,  69 

v.  Thorne 

67, 

68.  77.  85 

v.  Forty 

278 

v.  Townsend 

145 

v.  Foster 

58 

v.  United  Slates 

52 

v.  Fox 

122 

v.  Washington  City, 

&c. 

R.  Co. 

v.  Freel 

64,  68,  71 

21,    150,  222 

v.  Gale 

258 

v.  Wells 

97 

v.  Garza 

271 

v.  Westmoreland 

84, 

96,  97, 

v.  Glover 

212 

105,  115 

v.  Hay  ward 

145 

v.  Wheeler 

200 

v.  Healy 

8 

v.  Wilson 

124 

v.  Herd 

294 

v.  Winter 

282 

v.  Hosmer 

257 

v.  Woods 

24,  no 

v.  Humphrey 

11 

v.  Woolfolk 

223 

v.  Hutchinson 

7 

Smull's  Estate 

4i.  97 

v.  Ide 

146 

Smyth  v.  Bythewood 

118 

v.  Jackson 

258 

Snavely  v.  Pickle 

229,  235 

v.  Kensington 

199 

Snell  v.  Harrison 

35 

v.  King 

200,  203 

Snoddy  v.  Kreutch 

256 

v.  Lee 

256 

Snodgrass  v.  Andrews 

260 

v.  Leeper 

68,  76 

Snook  v.  Mears 

93 

v.  Lloyd 

58 

Snow  v.  Boston  Blank  Book  Manuf. 

v.  Lockwood 

33 

Co. 

200 

v.  Lorillard 

259 

v.  Booth 

199 

v.  Ludlow 

112,  285,  287 

Snowdon,  Ex  parte 

145 

v.  McCurdy 

265 

Snyder  v.  Castor 

25 

v.  Miller 

182 

Soar   v.  Ash  well 

200,  276 

v.  Morrison 

11 

Society,  &c.  v.  Pawlet 

256 

v.  Morrow 

263 

v.  Whitcomb 

289,  291 

v.  Moulton 

68 

Society  for  the  Propagation 

of  the 

v.  Newby 

6,  183 

Gospel  v.  Wheeler 

4.  11 

v.  Paterson 

"7 

Sohn  v.  Waterson 

11,  117 

v.  Pocock 

214 

Solinger  v.  Earle 

145 

v.  Poole 

92 

Sollee  v.  Croft 

212 

v.  Porter 

68,  79 

Solomon  v.  Bank  of  Eng! 

and 

21 

v.  Reic'i 

271 

v.  Dreschler 

no 

v.  Remington 

35 

Somerset  Co.  v.  Veghte 

252 

v.  Ricords 

212 

Somersworth  v.  Roberts 

236 

v.  Ruocastle 

277 

Somerville  v.  Trueman 

260 

v.  Ryan 

70,  112,  114 

Sommer  v.  Pacific  R.  Co. 

58 

v.  Sac'x'Jtt 

201 

Sonoma  County  t.  Hall 

154 

?■.  Se'Jalia 

180 

Sotber  v.  Willing 

267,  269 

v.  Shaw 

117.  273 

Sornbergcr  v.  Lee 

101 

v.  Simmons 

105 

Sorrell  v.  Craig 

"5 

v.  Simms 

96,  104,  115 

Sothoron  v.  Hardy 

68 

7'.  Sims 

68 

Soule  v.  Barlow             257 

,  258,  263,  268 

v.  Slocumb 

267 

South  v.  Thomas 

251 

TABLE    OF   CASES. 


XCl 


SECT. 

Southard  v.  Brady  i,  27,  59 

v.  Central  R.  R.  Co.  n 

Southern  Ex.  Co.  v.  Caperton  51 

v.  Hunnicutt  51 

So.  Pac.  Co.  .-.  Prosser  77 

Southgate  v.  Ch  jplin  173 

South  School  District  v.  Blakeslee     260 

South  Sea  Co.  v.  Duncomb  22 

v.  Wymondsell  16,  19,  58,  275 

Southwick  v.  First  Nau  Bank  140 

Souzer  v.  De  Meyer  19,  35,  199 

Spangler  v.  Spangler  79 

Spann  v.  Fox  211 

Sparhawk  v.  Buel  35,  199 

v.  Bullard  259 

Sparrow  v.  Hovey  257 

Spaulding  v.  Andrews  131 

v.  Farwell  24,  58,  60 

Speake  v.  Sheppard  25 

Spear  v.  Curtis  296 

v.  Green  173 

v.  Newell  58,  296 

Spears  v.  Hartley  21,  65,  222,  232 

Speidel  v.  Henrici  60,  200,  276 

Spellman  v.  Muehlfeld  280 

Spencer  v.  Falls  Turnp.  Co.  61 

v.  Jennings  60 

v.  Mariott  173 

v.  Weston  273 

Sperry  v.  Moore  280 

Spickernell  v.  Hotham  94 

Spitter  v.  Schofield  259 

Spokane  County  v.  Prescott         52,  154 

Spong  v.  Wright  68,  87 

Spoor  v.  Wells  58,  200 

Spotswood  v.  Dandridge     200,  201,  215 

Sprague  v.  Baker  173 

v.  Greene  199 

v.  Hazelwinkle  no 

v.  Norway  55 

v.  Sprague  141 

Sprecker  v.  Wakely  n,  12 

Sprow  v.  Boston  &  Albany  R.  Co.     258 

Spruill  v.  Sanderson  58 

Stackhouse  v.  Barnston  32,  58 

Stafford  v.  Bryan  58,  68,  200 

v.  Richardson  6g,  71,  122,  285 

Stagg  v.  Eureka  Tanning  Co.  265 

Stahlschmidt  v.  Lett  188 

Siaight  v.  Burn  182 


SECT. 

Staley  v.  Housel  2S2 

Stallsworth  v.  Preslar  145 

Stambaugh  v.  Snoblin  n 
Stamford,  S.   &  B.  Banking  Co.   v. 

Smith  103,  190 

Stamper  v.  Griffin  260 

v.  Johnson  236 

Stamway  v.  Rock  203 

Stanchfield  z\  Newton  180 
Standard  Sewing    Machine    Co.   v. 

Frame  118 
Standard  Quicksilver  Co.  v.  Habi- 

shaw  258 

Staniford  v.  Tuttle  118,  123 

Stanley  v.  Hayes  173 

v.  Stanley  245 

v.  Stanton  276 

v.  Turner  259 

v.  White  267 

Stannard  v.  Eldridge  173 

Stansbury  v.  Stansbury  86,  97 

Stansfield  v.  Hobson  225 

Slansford's  Case  190 

Slanton  v.  Blossom  132 

v.  Stanton  77,  118,  128 

Stanway  v.  Rock  203 

Staple  v.  Spring  180 

Staples  v.  Staples  123 

Starck  v.  Union  Central  L.  ins.  Co.     42 

Staiett  v.  Barber  no 

Stark  v.  Fuller  146 

v.  Elunton  18S 

v.  Mansfield  265 

Starke  v.  Cheeseman  125 

v.  Keenan  188 

v.  Starke  212,  251 

Starr  v.  Starr  200 

Starry  v.  Starry  273. 

State  v.  Appleby  30,  57 

v.  Arledge  52 

v.  Blackwell  205 

v.  Blake  52 

v.  Burnett  40a 

v.  Calhoun  240 

v.  Cincinnati  Gaslight  Co.  258 

v.  Clark  n,  12 

v.  Conway  154 

v.  Corlies  101 

v.  Crutcher  188 

v.  Fleming  52 


XC11 


STATUTES   OF    LIMITATION. 


SECT. 

State 

v.  Gasconade  County 

Court        54 

v. 

Giles 

276 

v. 

Groome 

289 

v. 

Holman 

1S0 

v. 

Jacobs 

55 

v. 

John 

8 

v. 

Joiner 

52 

v. 

Kelly 

52 

v. 

Kings  Co. 

52 

v. 

Ladd 

S 

v. 

Laval 

221 

V. 

Layton 

240 

V. 

McGo«.ven 

200 

V. 

Mclntire 

7 

V. 

Miller 

162 

V. 

Minor 

154 

V. 

Moore 

13 

V. 

Nute 

13 

V. 

Parsons 

7,  163 

V. 

Pavey 

6 

V. 

Pratt 

52 

V. 

Ragland 

221 

V. 

Riley 

13 

V. 

Rook 

2S 

V. 

Schnierle 

54 

V. 

Shires 

212 

V. 

Sneed 

11 

V. 

Spencer 

7 

V. 

Sponaugle 

S2 

V. 

Swope 

S 

V. 

Thomas 

no 

V. 

Upchurch 

55 

V. 

Vreeland 

1 1 

v.  Yellow  Jacket  Silver  Min.  Co.  52 

State  Bank  v.  Baker  290 

v.  Brown  52 

v.  Corwith  20 

v.  Gibson  188 

v.  Vance  188 

v.  Waddy  6S 

v.  Walker  188 

v.  Wood  105 

v.  Wooddy                         96,  101,  105 

State  Ins.  Co.  v.  Meesman  42 

State  Loan  &  Trust  Co.  v.  Cochran 

41.  171 

State  Treasurer  v.  Weeks  52 

Staton  v.  Mullis  268 

Steamboat  Co.  v.  Barclay  11 

Steamboat  Mary  Blane  54 


SECT. 

Steamer  Co.,  Re  131 

Stearns  v.  Brown  126 

v.  Godfrey  265 

v.  Hochbrunn  270 

v.  Page  213,  275 

v.  Stearns  68 

Stebbins  v.  Scott  149 

Steckel's  Appeal  n 

Steel  v.  Henry  212 

v.  Johnson  260,  271 

v.  Matthews  97 

v.  Smith  30 

v.  Steel  81,   188,  236 

Steele  v.  Adams  229 

v.  Jennings  73,  76,  285,  287 

v.  Souder  287 

v.  Soule  285 

v.  Towne  68 

v.  United  States  52 

Steen  v.  Niagara  Ins.  Co.  42 

v.  Wadsworth  265 

Steeple  v.  Downing  270 

Steere  r.  Steere  201 

Slein  v.  Burden  182 

Stephen  v.  Yandle  215 

Stephens,  In  re  199 

Stephens  v.  Downey  122 

v.  Leach  267,  269 

v.  McCormick  260 

v.  Moore  254 

Stephenson  v.  Stephenson  124 

Stevens  v.  Bomar  238,  251 

v.  Brooks  259 

v.  Dedham  Inst.  235 

v.  Dewing  258 

v.  Fisher  245 

v.  Hertzler  59 

v.  Hewitt  70 

v.  Hollister  259,  261 

v.  Taft  270 

v.  Union  Trust  Co.  60 

v.  Winship  259 

Stevenson  v.  McReary  251 

v.  Robinson  276 

Stever  v.  Lamoure  20 

Stewart's  Appeal  277 

Stewart  z.  Chadwick  20S 

v.  Drake  173 

v.  Durrett  1  lb 

v.  Garrett  £6 


TABLE   OF   CASES. 


XClU 


Stewart  v.  Harris 
v.  Justices 
v.  Keith 
v.  Kerr 
v.  Kohn 
v.  Spedden 

Stiles  v.  Easley 
v.  Hooker 


SECT. 
267 

30 

153 
24 

6 

6,  194 

0 

182 


v.  Laurel  Fork  Oil  &  Coal  Co.     193 
Stillman  v.  White  Rock  Manfg.  Co. 

182,  256 

v.  Young  188 

Stillwater   &    St.    Paul  R.    Co.    v. 

Stillwater  218 

Still  well  v.  Coons  1 

Stilphen  v.  Ware  149 

Stine  v.  Bennett  12 

?tipp  v.  Brown  II,  12 

Stock,  In  re  137 

Stocker  v.  Green  35 

Stockett  &.  Sasscer  70,  76 

v.  Watkins  21 

Stockham  Bank  v.  Alter  294 

Stocking  v.  Hunt  11 

Stocks  v.  Van  Leonard  275 

Stockwell  v.  Coleman  30,  34 

v.  United  States  25 

Stoddard  v.  Doane  6,  71,  85,  101 

Stokes  v.  Berry  256 

v.  Lebanon,  &c.  Turnpike  Co.     60 

Stone  :r.  Brown  276 

v.  Hammell  145 

v.  Nichols  139 

v.  Rogers  81 

v.  Todd  120 

Stoops  v.  Delvin  265 

Storer  v.  Haskell  no 

Storm  v.  United  States  7 

Story  v.  Fry  253 

v.  Gape  218 

v.  Saunders  266,  269 

Stoughton  v.  Baker  52 

Stout  v.  Gallagher  25 

v.  Marshall  68,  86 

v.  Merrill  265 

v.  Vause  145 

Stowel  v.  Zouch        6,  238,  240,  251,  259 

Stowell  v.  Fowler  07 

Stoyel  v.  Westcott  21 

Strahn's  Appeal  172 


SECT. 

Strange  v.  Durham  256 

Strattcn  v.  Dialogue  220 

Strawn  v.  Hook  97 

Sireator  v.  Jones  236 

Strickland  v.  Walker  68 

Strike's  Case  20* 

Strike  v.  McDonald  202 

Striker,  Ex  parte  172 

Strimprier  v.  Roberts  201 

Strode  v.  Blackburne  21 

v.  Seaton  265 

Stroeble  v.  Large  35 

Strong  v.  Burchard  55 

v.  Cotter  266 

v.  M'Connell  104 

v.  McCormick  68 

v.  Smith  245 

v.  Stewart  236 

Strough  v.  Supervisors  143 

Struthers  v.  Peckham  183 

Stuari  v.  Foster  79,  101 

Stubblefield  v.  Borders  256 

v.  Menzies  240 

Slubbs  v.  Ripley  243 

Stump  v.  Henry  235,  209 

Sturdy  v.  Henderson  118 

Sturges  v.  Burton  7,  41 

v.  Crowninshield  II,  222 

Sturgis  v.  Darrell  iqo,  ig4 

v.  Morse  275 

v.  Preston  140 

Sturt  v.  Mellish  6,  251 

Sturtevant  v.  Waterbury  21 

Sturton  v.  Richardson  24 

Sublette  v.  Tinney  275 

Sugar  River  Bank  v.  Fairbank     58,  188 

Sullivan  v.  Fosdick  142 

v.  Halker  66 

v.  Portland  &  K.  R.  Co.,  40a,  60, 

200 
Sulphur  Mines  Co.  v.  Thompson  258 
Summers  v.  Fidelity   Mutual    Aid 

Ass'n  42 

Summerville  v.  Holliday  29,  172 

Sumner  v.  Stephens  260 

v.  Sumner  85 

Sumter  v.  Morse  277 
Susquehanna,    &c.    R.    R.    Co.    v. 

Quick  266,  269 

Suter  v.  Sheeler  68,  70 


XC1V 


STATUTES   OF   LIMITATION. 


SECT. 

;ect. 

Sution  v.  Burruss 

68 

Tanner  v.  Smart      66, 

68, 

77,  79.  81 

, 

v.  Clark 

271 

36,  178, 

199 

v.  Sutton 

35. 

145 

Tapling  v.  Jones 

182 

v.  Toomer 

118 

Tappan  v.  Burnham 

258 

Suydam  v.  Jones 

174 

v. 

Kimball 

116 

Swallow,  The 

7 

Tarbell  v.  Parker 

6, 

188 

Swain,  In  re 

40, 

21S 

T.arbox  v.  Adams  County 

7 

Swamp  Land  District  v.  Glide 

11 

Tasker's  Lessee  v.  Whitti 

ngton 

259 

Swann  v.  Sowell 

61 

,8s 

Tasse 

1  v.  Lewis 

132 

Swart  v.  Service 

236 

Tatam  v.  Williams 

210 

Swasey  v.  Little 

20 

Tate  v.  Clements 

285, 

287 

Swazey  v.  Allen 

139 

v. 

Greenlee 

60 

Swayn  v.  Stevens 

183 

V. 

Hawkins 

79 

Swearingen  v.  Harris 

277 

J. 

Winfree 

145 

v.  Robertson 

6 

251 

Taylor  v.  Barnes 

165 

v.  United  States 

52 

v. 

Bates 

123. 

Sweat  v.  Arrington 

200 

v. 

Blair 

214 

Sweet  v.  Franklin 

77 

V. 

Brown 

54 

v.  Hentig 

104, 

276 

V. 

Burnside 

269, 

271 

v.  Irish 

124, 

175 

V. 

Carpenter 

61 

v.  Jeffries 

294 

V. 

Carroll 

222 

v.  South  worth 

16 

V. 

Cheever 

22 

Sweetser  v.  Lowell 

221 

V. 

Delancey 

6 

Swettenham  v.  Leary 

26j 

V. 

Gould 

281 

Swickard  v.  Bailey 

11 

V. 

Hawkins 

21 

Swift  v.  Dean 

265 

V. 

Hendrie 

103, 

105 

v.  Raymond 

24 

V. 

Holmes 

40a, 

200 

v.  Tousey 

54 

V. 

Horde 

3. 

258 

v.  Whitney 

20 

V. 

Jacoby 

54. 

132 

Swindersine  v.  Miscally 

200 

V. 

Kilgore 

163, 

204 

Switzer  v.  Noffsingir 

59.  6S 

,  S6 

V. 

Luther 

236 

Sykes  v.  Summerel 

25 

V. 

McClain 

235 

Sylvester  v.  Downer 

146 

V. 
V. 

M'Donald 
Mc  Murray 

68,  116, 

277 
58 

T. 

V. 

Merchants'  &  Bank 

ers'  Ins. 

Taber  v.  Royal  Ins.  Co. 

289 

Co. 

42 

Taft  v.  Commonwealth 

258 

V. 

Morrison 

210 

v.  Shaw 

121 

V. 

NTeedham 

265 

v.  Stow 

199 

V. 

Priest 

117 

Taggart  v.  Stanbery 

256 

V. 

Public  Hall  Co. 

267 

v.  Western,  &c.  R.  Co. 

141 

V. 

Rowland 

118. 

153 

TalbDt  v.  Braddil 

228 

V. 

Sandiford 

no 

v.  Todd 

215 

V. 

Spears 

123, 

209 

Talbott  v.  Woodford 

256 

V. 

Spicey 

66 

Taliaferro  v.  Taliaferro 

201 

V. 

Stedman 

68,  7: 

,  77 

Tallman  v.  Mel.  EI.  R.  Co. 

60 

V. 

Witman 

118,   124, 

125 

Talony  v.  Jackson 

33 

Tazewell  v.  Whittle 

7.  73, 

190 

Tamplin  v.  Diggins 

21 

Tazewell  Co.  v.  Daven 

port 

245 

T  inkersley  v.  Childers 

21 

Teabout  v.  Daniels 

258 

Tanner  v.  Kellogg 

263 

Teackle  v.  Gibson 

58 

TABLE   OF   CASES. 


XCV 


SECT. 

Teall  v.  Slaven  200,  274 

v.  Syracuse  144 

Teasley  v.  Bradley  123 

Tebbetts  v.  Tilton  201 

Tebo  v.  Robinson  77,  117 

Teessen  v.  Camblin  79,  88 

Tegarden  v.  Carpenter  269 

Telfener  v.  Dillard  60 

Ten  Eyck  v.  Richards  262 

v.  Wing  6S,  73 

Tennessee  Bank  v.  Hill  276 

Tenney  v.  Hemenway  295 

v.  Sanborn  20 

Terry  v.  Anderson  11,  149 

v.  Rosell  221 

v.  Sickles  280 

Teulon  v.  Curtis  225,  228 

Tewksbury  v.  Magraff  265 

Tharp  v.  Tharp  280 

Thatcher  v.  Hope  Cemetery  Assn.     119 

Thayer  v.  Cramer  200,  221 

■v.  Daniels  145 

v.  Hollis  188 

v.  Mann  21,  65,  222 

v.  Mills  69 

v.  Society  265 

Theobold  v.  Stinson  280 

Theriat   v.  Hart  6 

Thibodeau  v.  Levasseur  8 

Thistle  v.  Frostburg  Coal  Co.  267 

Thoemke  v.  Fiedler  256 

Thomas  v.  Afflick  54 

v.  Babb  258 

v.  Brinsfield  200 

v.  Carey  77,  97 

v.  Floyd  200 

v.  Harvie  58 

v.  Hooper  277 

v.  Hunter  81 

v.  Machir  238 

v.  Merry  212 

v.  Pacific  Beach  Co.  20 

v.  Pickering  266 

v.  Premium  Loan  Ass'n  54 

v.  Rauer  276 

v.  Shoemaker  55 

v.  Thomas  24,  184 

v.  Walker  201 

v.  While  58,  200 

v.  Woods  146 


SETC. 

Thompson,  Re  245,  247 

Thompson  v.  Afflick  7 

v.  Alexander  n 

v.  Babb  263 

v.  Bank  of  British  North  America 

140 

v.  Bank  of  North  America  17 

v.  Blair  200,  212 

v.  Brown  188 

v.  Burhaus  262,  267 

v.  Central  Bank  154. 

v.  Cragg  251,  259 

v.  Felton  260 

v.  Fisher  139,  279 

v.  French  68 

v.  German  Ins.  Co.  289 

v.  Gordon  119 

v.  Gotham  259 

v.  Hopper  277 

v.  Lee  County  30 

v.  McCorkle  273 
v.  M'Gaw                            35,  199,  205 

v.  Milford  267 

v.  Osborne  71,  77,  81 

v.  Parker  7 

v.  Patton  236 
v.  Peter                         68,  69,  70,  190 

v.  Phelan  no 

v.  Phenix  Ins.  Co.  42 

v.  Read  n 

v.  Reno  Savings  Bank  149 

v   Simpson  60 

v.  Stevens  145 

v.  Tioga,  &c.  R.  Co.  8,  250 

v.  Vanbeek  54 

v.  Waithman  211 

v.  Whitaker  Iron  Co.  183 
Thomson  z.Conn.  Mut.  L.  Ins.  Co.       54 

Thoreau  v.  Pallies  261 

Thorn  v.  Moore  104 

Thorne  v.  Heard  218 

Thornton  v.  Boyd  57 

v.  Crisp  68,  73 

v.  France  235 

v.  Illingworth  68 

Thorogood  v.  Robinson  183 

Thorp  v.  Raymond  6,  251 

v.  Thorp  58 

Thorpe  v.  Booth  118 

v.  Coombe  118,  125 


XCV1 


STATUTES   OF   LIMITATION. 


SECT. 

Thorpe  v.  Corwin  6,  240 
Thrall  v.  Mead               Ii8,  124.  127,  128 

Thrash  v.  Sum  wait  188 

Thurlow  v.  Gilmore  no 

Thurman  v.  Shelton  117 
Thurston  v.  Blackiston        163,  175,  179 

v.  Lovvder  188 

v.  Luce  60 

v.  Wolfborough  Bank  13S 

Tice  v.  School  District  40(? 

Tichborne  v.  Weir  259 
Tichenor  v.  Colfax                      64,  68,  70 

Ticknor  v.  Harris  58,  t8S 

Tidd  v.  Overell  17 

Tiernan  v.  Rescaniere  58 

Tilden,  Re  194 

Tileston  v.  Brookline  117 

Tilghman  v.  Little  265 
Tilletz'.  Linsey                              64.  68,  70 

Tilletl.  v.  Commonwealth  66 

Tillinghast  v.  Nourse  104 

Tillison  v.  Ewing  276 

Tillotson  v.  Doe  265 

v.  Rose  145 

Tillson  v.  Bowley  55 

Tilton  v.  Swift  II 

Timmis  v.  Piatt  190 

Tindal  v.  McMillan  157 

Tindall  v.  Carson  25 

Tinker  v.  Rodwell  163 

Tinnen  v.  Mebane  200,  212 
Tippetts  v.  Heane                    97,  99,  104 

Tippin  v.  Coleman  6 
Tipping  v.  St.  Helen  Smelting  Co.     181 

Tisdale  v.  Essex  173 

v.  Mitchell  141 

Tison  v.  Yawn  26s 

Titcomb  v.  Morrill  201 

Tilman  v.  Titman  120 

Tobacco  Co.  v.  Loder  19 

Tobin  v.  McKinney  118,  142 

Toby  v.  Allen  194 

Todd's  Appeal  293 

Todd  v.  Board  of  Education  20 

v.  Rafferty  211 

v.  Weed  258 

Toft  v.  Stephenson  190,  229 

Toland  v.  Spring  277 

Tomes  v.  Barney  245 

Tomkins  v.  Wiltshire  24 


SECT. 

Tompkins  v.  Brown 

77 

v.  Haile 

183 

v.  Hollister 

274 

v.  Snow 

265 

Toole  v.  Johnson 

273 

Toomes  v.  Conset 

277 

Topham  v.  Braddick             118, 

123,   209 

Toulandou  v.  Lachenmeyer 

8 

Towers  v.  Hayner 

240 

Towle  v.  Ayer 

256 

Town  v.  Butterfield 

265 

Townes  v.  Ferguson 

190 

Townley  v.  Denison 

280 

Townsend  v.  Deacon 

190 

v.  Ingersoll 

190 

v.  Jameson 

8,  10 

v.  Jennison 

7,  222 

v.  Tyndale 

200 

v.  Vanderwerker 

59 

Tracy  v.  Atherton 

182 

v.  Newell 

68 

v.  Norwich,  &c.  R.  R.  Co.  258 

Traer  r.  Clews  275 

Trafton  v.  Hill  6 

Trammell  v.  Anderson  21 

v.  Salmon  69 

Traphagen  v.  Jersey  City  61 

Trapnall  v.  Burton  269 

Trask  v.  Weeks  77 
Travellers'  Ins.   Co.   v.   California 

Ins.  Co.  42 

Travers  v.  Dyer  24 

Trayser  v.  Trustees  224 

Tread  way  v.  Tread  way  68 

Treadwell  v.  Moore  no 

v.  Treadwell  200 

Trecothick  7/.  Austin  206 

Trent  v.  Hunt  221 

Trenlham  v.  Deverill  98,  III 

Trim  v.  McPherson  1,  254 

Trimble  v.  Thorne  118 

Trimm  v.  Marsh  221 

Trimyer  v.  Pollard  281,  282 

Tripe  v.  Marcy  235 

Tripp  v.  Curtenius  118,  142 
Trippe  v.  Provident  Fund  Society     142 

Tritt  v.  Roberts  267 

Trott  v.  West  188 
Trotter  v.  Erwin                       21,  222,  232 

v.  Maclean  276 


TABLE    OF    CASES. 


XCV11 


Trotter  v.  Trotter 

88 

Troup  v.  Smith               5S, 

155. 

252, 

-74 

Trousdale  v.  Anderson 

79 

Troutman  v.  May 

52 

Troy  v.  Cheshire  R.  R.  Co. 

180 

Trucks  v,  Lindsey 

236 

Trueman  v.  Fenlon 

6; 

,  7i 

Trullinger  v.  Kofoed 

no 

Trustees  v.  Kirk 

257 

v.  Osgood 

105 

v.  Rowell 

139 

v.  Smith 

124 

Tryon  v.  Munson 

221, 

223 

Tucker  v.  Baker 

2 

v.  Fisk 

59 

v.  Harris 

n 

v.  Ives 

277, 

278 

v.  Newman 

182 

v.  Randall 

126 

■  v.  Tucker 

124, 

200, 

211 

v.  White 

175 

v.  Wilson 

22 

Tuckerman  v.  Brawn 

150 

Tuckey  v.  Hawkins 

Iiq, 

176 

Tufls  v.  Carradine 

54 

v.  Tufts 

295 

Tuggle  v.  Minor 

63 

Tullis  v.  Sewell 

33 

Tullock  v.  Dunn 

190, 

191 

v.  Worrall 

270 

Tunnard  v.  Littell 

200 

Tunstall  v.  Pollard 

188 

Turcott  v.  Railroad 

245, 

250 

Turkey  v.  Hawkins 

IIQ 

Turlock  v.  Roby 

235 

Turman  v.  White 

267 

Turnbull  v.  Gadsden 

275 

v.  Strohecker 

277, 

27S 

Turner  v.  Crisp 

115 

v.  Debell 

200 

v.  Fidelity  &  C.  Co. 

42 

v.  Hall 

257, 

268 

v.  Lambeth 

30 

v.  Martin                      71 

,  79, 

120, 

I4t 

v.  Ross 

10+ 

v.  Smith 

212 

Turner's  Estate,  In  re 

35 

Turney  v.  Dodwell 

68, 

112, 

114 

Tuttle  v.  Wilson 

273 

Tyler  v.  Court  of  Registration 

254 

Tyler  v.  Nelson 
v.  Wilkinson 
v.  Winslow 
Tynan  v.  Walker 
Tyson  v.  Britton 
v.  Jackson 


SECT. 

24 

182 

31 

6,  IQ4 

6,  251 

199,  205 


u. 


Uline  v.  N.  Y.  C.  &  H.  R.  R.  Co.        60 

Underhill  v.  Mobile  Ex.  Ins.  Co.  117 
v.  Sonora  127 

Underwood  v.  Dugan  60 

v.  Patrick  8 

Union  Bank  v.  Forrest  55 

v.  Foster  115,  116 

v.  Knapp  142,  152,  277,  278,  280 
v.  Stafford  58,  59,  222 

Union  County  Sav.  Inst.  v.  Young     199 


Union  Hotel  Co.  v.  Hersee 
Union  Nat.  Bank  v.  Evans 
Unitarian  Society  v.  Woodbury 
United  States  v.  Arredondo 

v.  Athens  Armory 

v.  Ballard 

v.  Bank  of  Metropolis 

v.  Barker 

v.  Beebe 

v.  Bell  Telephone  Co. 

v.  Beverley 

v.  Bougher 

v.  Bradbury 

v.  Buford 

v.  Colt 

z.  Dallas  Military  Road  Co 

v.  Daniel  58,  59,  152 

v.  Davis  52 

v.  Des  Moines  Nav.  Co. 

v.  Donelly 

v.  Hoar 

v.  How  land 

v.  Insley 

v.  Kilpatrick 

v.  Knight 

v.  Maillard 

v.  Muhlenbrink 

v.  Nashville,  &c.  R.  R.  Co 

v.  Nichols 

v.  Oswego 

v.  Preston 

v.  Samperyac 


201 

86 

201 

259 
221 
12 
52 
52 
52 
52 
214 

25 

no 

52 

25 

,  60 


52 

8 

52 

275 

52 

52 

52 

6,  252 

252 
52 
52 
30 

145 
II 


XCV111 


STATUTES   OF   LIMITATION. 


SECT. 

United  States  v.  Thompson  2,  52 

v.  Wallamet  Wagon  Road  Co.      60 

v.  Wardwell  II8 

t.  White  52 

v.  Wilder                    96.  97.  105,  287 

v.  Wiley  b 

v.  Williams  52 

United  States  Bank  v.  Daniel  58,  140 

v.  McKenzie  52 

United  States  Ex.  Co.  v.  Harris  51 

Updike  v.  Ten  Broock  289 

Upham  v.  Wyman  203 

Upton  v.  Else  87 

v.  Mason  7 

v.  M'Laughlin  7 

v.  Steele  7 

Urton  v.  Hunter 

Utica  Bank  v.  Dallou 


v.  Childs 

v.  Van  Gieson 


96,  98,  101, 

105,  288 
179 
140 
76 


Utica  Ins.  Co.  v.  Bloodgood 

V. 

Vail  v.  Junction  R.  R.  Co.  173 

Valentine  v.  Cooley  271 

Van  Alstyne  v.  Lemons  3° 

Vanbibber  v.  Bierne  274 

Van  Bibber  v.  Frazer  266 

Van  Blarcom  v.  Kip  260 

Van  Brocklin  v.  Tennessee  52 

Van  Buren  z:  Olmstead  236 

Vance  v.  Grainger  252 

Vancleave  v.  Milliken  259 

v.   Wilkinson  259 

Vandall  v.  St.  Martin  271 

Vanderkemp  1.  Shelton  14° 

Vanderzee  v.  Willis  21,  22 

Vandesande  v.  Chapman  132 

Vandever  v.  Vandever  183 

Van  Dike  v.  Van  Dike  7 

Van  Dorn  v.  Bodley  8 

Van  Gorden  v.  Jackson  270 

Van  Hook  v.  Whitlock  II,  119,  149 

Vanhorn  v.  Scott  120 

Van  Houten  v.  Van  Winkle  60 

Van  Keuren  v.  Parmalee     285,  286,  287 

Vanlandingham  v.  Huston  245 

Van  Nest  v.  Lott  154 

Van  Rensselaer  v.  Livingston  2 


Van  Rhyn  v.  Vincent 
Van  Santvoord  v.  Roethler 
Van  Slyck  v.  Kimball 
Van  Vleet  v.  Sledge 
Van  Wagonen  v.  Terpenning 
Van  Wickle  v.  Garrett 
Vardeman  v.  Lawson 
Varick  v.  Edwards 

v.  Jackson 
Vason  v.  Ball 
Vasse  v.  Smith 
Vasser  v.  Vasse r 
Vatel  v.  Herner 
Vaughan  v.  Hankinson 
Vaughn  v.  Mohawk  Ins.  Co. 
Veazie  v.  Penobscot  R.   R.  Co. 

v.  Williams 
Veazie  Bank  v.  Winn 
Vechte  v.  Brownell 

Veginan  v.  Morse 
Ventris  v.  Shaw 
Vernon  v.  Bethell 

Vernon  County  v.  Stewart 

Vesey  v.  Williams 

Vickers  v.  Stoneman 

Vickery  v.  Benson 
v.  Providence 

Viets  v.  Union  Nat.  B'k  of  Troy 

Vigus  v.  O'Bannon 

Village  Bank  v.  Arnold 

Vina  v.  Burrill 

Violett  v.  Sympson 

Virgin  v.  Land 

Virginia  Bank  v.  Adams 

Voelcker  v.  McKey 

Vore  v.  Hawkeye  Ins.  Co. 

Vose  v.  Woodford 

Vrooman  v.  Shepherd 


SECT. 
58,    200 

8,  34 
173 


60 

243 

252 

219 

60,  219 

256 

221 

21 

236 

173 

"5 
190 

179 

60 

132 

32 

42 

68 

227,  235 

66 

275 

77 

264 

180 

142 

276 

1.39 

285 

178 

269 

150 

20 

1 

7 

260 


W. 

Wachtet  1.  Albee  68.  70 

Waddell  v.  United  States  7 

Wade  v.  Doyle  6 

Wadsworth  v.  Loranger  236 

Waffle  v.  Short  277 

Wagar  v.  Stone  22T 

Waggoner  v.  Hastings  259 
Wagner  v.  Baird                    60,  200,  213 

v.  Duffy  54 


TABLE   OF   CASES. 


XC1X 


Wagstaff  7'.  Smith 
Wainman  v.  Kynman 

Wait  v.  Richardson 
Wakeman  v.  Roach 

v.  Sherman 

v.  Walker 
Wald  v.  Arnold 
Walden  v.  Bodley 

v.  Gratz 

v.  Sherburne 
Waldo  v.  Rice 
Waldron,  Re 

v.  M'Carty 

v.  Tuttle 
Wales  v.  Smith 
Walker  v.  Albee 

v.  Bank 

v.  Birch 

v.  Bradley 

v.  Burgess 

v.  Butler 

v.  Byers 

v.  Campbell 

v.  Cheever 

v.  Clements 

v.  Cruikshank 

v.  Fleming 

v.  Freeman 

v.  Goodrich 

v.  Griggs 

v.  Hill 

v.  John  Hancock 
Co. 

v.  King 

v.  Lai  h rep 

v.  Misissippi  Banl 

v.  Peay 

v.  Reeves 

v.  Robinson 

v.  Smith 

v.  Wait 

v.  Walker 

v.  Walton 

v.  War  field 

v.  Wilson 

v.  Witter 
Wall  v.  Robson 
Wallace  i.  Agry 

v.  Durheld 


SECT. 

SECT. 

215 

Wallace  v.  Fletcher 

182 

68,  79,  96, 

v.  Maxwell 

258 

97,  98,  99,  105 

v.  Miner 

52 

266 

v.  Stevens 

235 

273 

Wallbrun  r>.  Batten 

263 

64,  68,  70,  77,  97 

Wallen  v.  Huff 

225 

173 

Waller  v.  Lacy 

68, 

280 

68 

Wallingford  v.  Head 

259 

265 

Walls  v.  Mason 

265 

2,  6 

v.  McGee 

52 

285,  287 

v.  Smith 

259 

223,  224,  235 

Walmsley  v.  Milne 

221 

"7 

W 

ilnut  v.  WTade 

127 

173 

Waldradt  v.  Maynard 

123 

25^ 

Walsh  v.  Bosse 

30 

259 

v.  Chic.  &c.  R.  R.  Co. 

117 

79 

v.  Hill 

257, 

268 

ir 

v.  Ger.  Am.  Bank 

140 

21 

t:  Mayer 

72 

152 

Walter  v.  Lacy 

68 

4i 

v.  Radcliffe 

188 

101,  109 

Waltermire  v.  Westover 

11 

222 

18S 

Walters  v.  Kraft 

IOI 

68 

v.  McBee 

124 

24,  58,  188 

W 

iliham  Bank  v.  Wright 

188 

55,  281,  282 

w 

ilton  v.  Cronly 

236 

77,  190 

v.  Hele 

173 

7 

v.  Ogden 

256 

72 

v.  Robinson                      104, 

105, 

287 

121 

w 

il worth  v.  Routh 

8 

68 

W 

imbold  v.  Hoover 

86 

117 

W 

imburzee  v.  Kennedy 

200 

212 

Mut.    L.    Ins. 

w 

inkford  z:  Wankford 

189 

54,  124 

w 

inmaker  v.  Van  Buskirk 

58, 

172 

221 

w 

iples  v.  Layton 

6E 

,  71 

145 

w 

ird  v.  Carter 

229 

c                          12 

v.  Cole 

245 

296 

v.  Dulaney 

183 

221 

v.  Hallam 

8 

1,  2,  172 

v.  Harvey 

212 

63 

v.  Henry 

145 

288 

v.  Huggins 

259 

19,  200,  215 

v.  Hunier 

79 

1 90 

73 

v.  Jack 

68 

139 

v.  Kilts 

11 

256 

v.  Mcintosh 

237 

16,  30 

v.  Panter 

199 

2 

v.  Reeder 

205 

16,  125 

v.  Smith 

212 

258 

p.  Tyler 

210 

STATUTES   OF   LIMITATION. 


Ward  v.  Walkers 
Ware  v.  Bennett 

v.  Green 

v.  Hewey 

;•.  Johnson 

v.  Manning 
Warfield  v.  Fox 

v.  Lindell 
Warlick  v.  Peterson 
Warn  v.  Bickford 
Warner  v.  Bartle 

v.  Bull 

v.  Callender 

v.  Daniels 

v.  Morse 

v.  Rising  Fawn  Iron 
Warren  v.  Bovvdran 

v.  Chapman 

v.  Childs 

v.  Gran  ville 

v.  Murphy 

v.  Paff 

v.  Perry 

v.  Rogers 

v.  Slade 

v.  Sweeney 

v.  Walker 
Washabaugh  v.  Entriken 
Washburn  v.  Cutter 

v.  Merrill 

v.  Pond 
Washingion  v.  Conrad 
Washington  Market  Co.  v 
Watchman  v.  Crook 
Waterman  v.  Burbank 

v.  Younger 
Waters  v.  Earl  of  Thanet 

v.  Tompkins  98, 

v.  Travis 
Waterson  z    Kirkwood 
Walkins  v.  Ford 

:.  Ilarwood 

v.  Feck 

v.  Slevens 

v.  Vrooman 
Watson  v.    Alexander 

v.  Brewster 

v.  Cambridge 
1 1  tie 

?'.  Dickens 


Co 


7 

176 

52 

118 

259 
277 
252 

254 

69 

173 

11.  3° 

270 

31 

59 

199 

127 

254 
139 

258 

US 

265 

188,  190 

69.  73 

35 

54 

278 

76 

258,  261,  267 

226,  258,  268 

236 

22 

265 

Beckley     71 

20 

in 

no 

76,  87.  118 

105,  107,  115 

219 

230 

280 

58,  281 

182 

68,  77 

222 

265 

8 

19 

115,  1 16 

236 


Watson  v.   Forty-second  St.   R.  R. 

Co. 

v.  Heyn 

-    Kelly 

?'.  Lane 

v.  Phenix  Bank  18, 

v.  Saul 


v.  Southwick 
v.  Stem 
z'.Tindal 
v.  Watson 
v.  Woodman 
Watt  v.  Hoch 
v.  Trapp 
Watts  v.  Beall 
v.  Coffin 
v.  Creighton 
v.  Griswold 
v.  Gunn 
Waugh  v.  Cope 
Waul  v.  Kirkman 
Way  v.  Cutting 
v.  Wakefield 


179 
235 
240 
265 
18,  142 

199 

1 1 

68,  69,  70 

260 

240 

18,  211 

no 

182 

273 

221 

222 

267 

6 

96,  97,  100,  106 

141 

274,  276 

25 

Wayzata  v.  Great  Northern  R.  Co.     60 

Wear  v.  Skinner  276 

Weatherhead  z\  Bledsoe  52 
Weatherwax    v.    Cosumnes    Valley 

Mill  Co.  278,  2S0 

Weaver  v.  Weaver  71,  72 

v.  Wilson  258 

Webb  v.  Alexander  173 

v.  Carter  68 

v.  Patterson  236 

v.  Rice  236 

v.  Richardson  258 

v.  Sturtevant  259 

Webber  v.  Cochrane  70 

v.  Davis  183 

v.  WTilliams  College  137 

Weber  v.  Anderson  271 

v.  Manning  12 

Webster  t.  Byrnes  277 

v.  Cooper  n 

v.  Davies  8 

v.  French 

v    Kirk 

v.  Newbold 

v.  Webster 


208 
118,  131,  136 
7,  68,  70,  86 
6,  58,  194,  ros,  205 
Wedderburn  ?.  Wedderburn   35,  1  19, 

200,  212,  214 


TABLE   OF   CASES. 


CI 


SECT. 

4 

54 

22 

259 
13 
5i 


Weed  v.  Bishop 
Weeks  v.  Hull 

v.  Weeks 

Weems  v.  Simpson 

Weimer  v.  People 

Weir  v.  Express  Co. 

Weister  v.  Hade  n 

Weisinger  v.  Murphy  259 

Weisman  v.  Smith  210 

Weiss  v.  Munch  Chauk  Ins.  Co.  25 

Weisser  v.  Dennison  140 

Weitkamp  v.  Loehr  245,  247 

Welch  v.  Sykes  30 

Welcome  v.  Upton  182 

Weld  v.   Brooks  258 

v.  Hornby  182 

Welden  v.  Davis  256 

Weldon  v.  Buck  125 

Wellborn  v.  Anderson  259 

v.  Finley  251 

v.  Rogers  212 

v.  Weaver  240,  251 

Weller  v.  Fish  58 

Welles  v.   Graves  60 

Wellman  v.  Lawrence  188 

Wells  v.  Child  252 

v   Fish  274 

v.  Hal  pin  274 

v.  Hargrave  77 

v.  Harter  235 

v.  Jackson  Manfg.  Co.  257 

v.  Mann  118 

v.  Morse  58 

v.  Prince  259 

v.  Pyle  72 

v.  Ragland  132 

v.  Washington  2 

v.  Wilson  86 

Wells,  Fargo  &  Co.  v.  Enright  76 

Welman,  Re  54 

Welsh  v.  Phillips  227 

Welton  v.  Boggs  41 

Wenham.  In  re  188 

Wenman  v.  Mohawk  Ins.  Co.     112, 

118,   124,  125 

Wesley  Church  v.  Moore  145 

Wesner  :-.  Stein  70,  96 

West  v.  Creditors  202,  252 

v.  Lanier  269 

v.  Randall  60 


SECT. 

West  v.  Rice  154 

v.  Sloan  200 

v.  Stewart  174 

West  Branch  v.  Moorehcad  no 

Westbrook  v.  Beverley  73 

Westbrook  Mfg.  Co.  v.  Grant  54 

Westcott  v.  Whiteside  127 
Western  R.  R.  Co.  v.  Avery         I2g, 

149.  150 
Western  Union  Tel.  Co.  v.  Judkins  or 
Westfall  v.  Wesifall  273 

West  Feliciana  R.  Co.  v.  Stockett        ir 
Westmeyer  v.  Gallenkamp  237 

Westminster  Bank  z>.  Whyte  236 

Weston  v.  Ames  154 

v.  Cartwright  58 

v.  Hodgkins  77,  86 

West  Roxbury  v.  Stoddard  180 

Wethan's  Estate  70,  71,  81 

Wetherell  v.  Joy  no 

Wetherill  v.  New  Jersey  Zinc  Co.     40a 
Wetmore  v.  Woodbridge  v  24 

Wettig  v.  Bowman  270 

Wetzell  v.   Bussard     68,   69,   70,   71, 

72,  77 

Weymouth  v.  Gile  118 

Whalin   v.  White  265 

Whalley  v.  Small  257 

Whedbee  v.  Whedbee  214 

Wheeler  v.  Bates  256 

v.  House  no 

v.  Jackson  11,  254 

v.  Lewis  146 

v.  Moody  269 

r.  Piper  212,  215 

v.  Spinola  267 

v.  Stone  258 

v.  Warner  118,  124 

v.  Webster  247 

Wheeling    Bridge  &   T.    Ry.    Co.  v. 

Reymann   Brewing  Co.  235 

Wheelock  v.  Doo'ittle  285 

v.  Warschauer  265 

Whelan  v.  Kinslev  8 

Whipple    v.    Blackington      101,  no, 

112,  119 

v.  Stevens,  96,  97,  104,  285,  287,  288 

Whippy  v.  Hillary  79,  87,  95 

Whitaker  v.  Whitaker  259 

Whilbeck  v.  Cook  17-; 


Cll 


STATUTES   OF   LIMITATION. 


SECT. 

SECT. 

Whitcomb  v.  Whiting,  145 

, 176, 285 

287 

Whitney  v.  French                172 

176 

229 

White  t.  Brooklyn 

I64 

v.  Stevens 

267 

v.  Crutcher 

54 

v.  State 

194 

v.  Ewer 

222 

225 

v.  Wegler 

II 

v.  Hampton 

280 

v.  Wheeler  Cotton  Mills 

256 

v.  Hapeman 

260, 

263 

v.  Wright 

260 

v.  Jordan 

68,  96 

100 

Whitt  iker  v.  Grover 

no 

v.  Knox 

149 

Whitiemore  v.  Adams 

8 

v.  Lapp 

55 

Whittick  v.  Kane 

236 

v.  Latimer 

6 

251 

Whittington  v.  Flint 

223 

1.  Leavitt 

200, 

212 

v.  Wright 

261 

v.  Meadowcroft 

243 

Whitwell  v.  Brigham 

22 

v.  Methodist  Church 

5S 

Whitworth  v.  Ferguson 

12 

v.  Parkin 

25 

Wickersham  v.  Lee                 18 

122, 

274 

v.  Patterson 

60 

Wickes  v.  Lake 

257 

v.  Pendry 

58 

Wickliffe  v.  Ensor 

269, 

271 

v.  Poussin 

275 

Wicklow  v.  Lane 

267 

v.  Reagan 

122 

Wiggin  v.  Peters 

54 

v.  Rittenmeyer 

221 

Wiggins  v.  Holley 

257 

v.  Sheldon 

58 

7'.  Lovering 

188 

v.  Smilh 

124 

Wiggle  v.  Owen 

6 

v.  State 

13 

v.  Thomason 

132 

v.  Trumbull 

no 

Wiggins  Ferry  Co.  v.  Gardner 

294 

v.  White 

200 

Wilby  v.  Elgee 

77 

v.  Wieland 

21 

v.  Phinney 

20 

v.  Wilkinson 

266 

Wilcocks  v.  Huggins 

6, 

190 

White's  Bank  v.  Ward 

118, 

124 

Wilcombe  v.  Dodge 

132 

Whitehead  v.  Howard 

66, 

122 

Wilcox  v.  Clarke 

72 

v.  Lord 

119, 

121 

v.  Finch 

2 

v.  Walker 

125, 

134 

136 

v.  Pearman 

"5 

Whitehouse  v.  Fellowes 

140, 

178, 

1S0 

7'.  Plummer 

178, 

179 

Whiteman  v.  McFarland 

6S 

v.  Williams        68,  70,  73,  83,  St 

,  06 

White  Mountain  R.  Co.  v. 

Bay 

State 

Wilder  v.  Clough 

257 

Iron  Co. 

22 

v.  Secor 

17, 

252 

Whitesides  v.  Singleton 

259 

Wiley  v.  Brown 

77 

Whiting  v.  Cox 

235 

Milhoit  v.  Hancock 

186 

v.  Dewey 

266 

Wilkes  v.  Elliot 

256 

v.  Edmunds 

265 

Wilkin  v.  Wilkin 

123 

v.  White 

235 

Wilkins  v.  French 

221 

Whitlock  v.  Underwood 

124 

Wilkinson  v.  Dunn 

23S 

Whitman  v.  Gaddy 

145 

v.  First  National  Fire  Ins. 

Co. 

4s 

■v.  Hapgood 

11 

v.  Flowers       172,  221,  222, 

224, 

229 

v.  Oxford  Nat.  Bank 

149 

v.  Holloway 

8 

v.  Shaw 

258 

v.  Nichols 

260 

Whitmore  :-.  Foose 

188 

v.  Sherman 

60 

v.  Shiverick 

221 

v.  Verity 

140, 

276 

Whitney  v.  Batchelder 

236 

Wilks  v.  Robinson 

118, 

124 

v.  Bigelow     64,68,69, 

72,  77,  79 

Willard  v.  Clarke 

11, 

202 

105, 

112, 

115 

v.  Dorr 

27 

v.  Fox                          58 

.  59. 

200, 

276 

v.  Harvey 

II 

TABLE   OF   CASES. 


CI  l-l 


SECT. 

Willard  v.  Willard 

200 

v. 

Wood 

8 

Willet 

v.  Willet 

21 

Willets  v.  Thenix  Bank 

140 

Williams  v.  Annapolis 

270 

v. 

Beard 

22! 

v. 

Bemis 

20 

V. 

Bergin 

7 

V. 

Burrell 

173 

V. 

Chaffin 

188 

V. 

Council 

259 

V. 

Cush 

265 

V. 

Durst 

133. 

145 

V. 

Finney 

68 

V. 

Gridley 

105 

V. 

Granger 

146 

V. 

Griffith                              68 

,  87, 

2S0 

V. 

Gun 

65 

V. 

Harter 

180 

V. 

Hollingsworth 

201 

V. 

Innes 

79 

V. 

Jones 

2, 

253 

V. 

McAliley 

271 

V. 

Moyston 

178 

V. 

Mullis 

30 

V. 

N.  Y.  Cent.  R.  Co. 

60 

V. 

Otey 

208 

•v. 

Presbyterian  Society 

212 

V. 

Reed 

20 

V. 

Sherman 

25 

V. 

Taylor 

150 

V. 

Vermont  Mut.  Ins.  Co. 

42 

V. 

Wallace 

258, 

269 

V, 

Williams 

16, 

202 

"J. 

Winans 

138 

Williamson  v.  Farrow 

55 

v. 

Field 

11 

V. 

Naylor                          188, 

199. 

205 

V. 

Wardlaw 

294 

Willin 

gton  v.  Brown 

265 

Willis 

v.  Howe 

271, 

275 

v. 

Newham                         98, 

105, 

in 

Willison  v.  Watkins              200, 

212, 

265 

Willmott  v.  Jenkins 

205 

Willoughby  v.  George 

11 

v. 

Spear 

35 

Wills 

v.  Gibson 

119- 

172 

V. 

Will-on 

24 

Willson  v.  Betts 

6 

240 

v. 

Louisville  Trust  Co. 

208 

SECT. 

Wilmerding  v.  Russ 

19. 

200, 

212, 

238 

Wilson,  Ex  parte 

221 

v. 

/Etna  Ins.  Co. 

45 

.  48 

v. 

Anthony 

5* 

.  59 

v. 

Balfour 

21 

v. 

Brookshire 

212, 

276 

v. 

Callinshaw 

266 

v. 

Daggett 

245 

v. 

Drumrite 

236 

V. 

Green 

200 

V. 

Harper 

6 

V. 

Henry 

270 

V. 

Hudson 

52 

V. 

Ivey 

274, 

275 

V. 

James 

265 

V. 

Johnson 

258 

V 

Kilcannon 

6, 

251 

V. 

Mandeville 

279 

V. 

McEwan 

257, 

258, 

262 

V. 

McLenoghan 

273 

V. 

Nichols 

60 

V. 

Pope 

"5 

V. 

Richards 

236 

t. 

Tucker 

11 

V. 

Turberville 

7 

V. 

Williams 

132 

V. 

Wilson 

59 

,  60, 

175. 

240 

Wilt  v 

.  Buchtel 

7 

Wilton  z:  Girdlestone 

183 

Wimmer  v.  Ficklin 

235 

Winburn   v.  Cochran 

1, 

183 

Winch 

ell  v.  Hicks 

79. 

IOI, 

288 

v. 

Smith 

287 

Winchelsea  Case 

172 

Winchester  v.  Ball 

235 

Winch 

ester  &    Lexington 

Turnpike 

Co. 

v.  Wickliffe 

21 

Windsor  v.  China 

54 

Wing 

v.  De  la  Rionda 

294 

v. 

Hall 

270 

Wingate  v.  Pool 

188 

Wingfield  v.  Virgin 

208 

Winni 

piseogee  Lake  Co.  v 

Young 

182 

Winney  v.  Sandwich  Mfg. 

Co. 

250 

Winsh 

ip  r*.  Hudspeth 

182 

Winston  v.  McCormirk 

11 

Winter  v.  Muscogee  R. 

R. 

Co. 

150 

IK 

Stevens 

261 

Winters  v.  De  Turk 

177, 

273 

Wintertown  v.  Winterton 

68 

CIV 


STATUTES    OF    LIMITATION. 


SECT. 

Wires  v.   Farr 

II 

Wisecarver  v.  Kincaid 

7 

Wiseman  v.  Lucksinger 

256 

Wishart  v.  McKnight 

271 

Wisner  v.  Barnet 

19 

215 

Wisvvell  v.  Baxter 

— 

v.  VVilkins 

24 

Witbeck  v.  Van  Rensselaer 

154 

Withers  v.  Richardson 

119 

Wkherup  v    Hiil 

7 

Withy  v.  Mumford 

174 

Witt  v.  Elmore 

6, 

190 

Wittersheim  v.  Carlisle  81,  119,  124 

Wittovvsky  :/.    Reid  no 

Woart  v.  Winnick  II,  12 

Wolcott  v.  Ely  261 

Wolf  v.  Ament  267 

v.  Foster  115 

v.  Johnson  265 

v.  Western  Union  Tel.  Co.  51 

v.  Wolf  200 

Wolfe  v.  Fleming  73.  11 

-j.  Whiteman  118,  125 

Wolfensberger  v.  Young  68,  70,  73 

Wolford  v.  Cook  101,  112 

Wolmershausen,  In  re  73,  171 

v.  Gullick  145 

Wonderly  v.  Lafayette  County  30 

Wood  v.   Augustine  222,  223 

v.  Banks  259,  267 

v.  Barney  277 

v.  Braddick  211,  285,  287 

v.  Carpenter  252,  276 

v.  Chapman  258 

v.  Charing  Cross  R.  Co.                 61 

v.  Cleveland  Rolling  Mill  Co.     40^ 

v.  Commonwealth  54 

v.  Day  265 

v.  Etivvanda  Water  Co.  254 

v.  Fel  221 

v.  Ford  58,  59,  117,  194 

v.  Gault  280 

v.  Gee  20,  25 

v.  Goodfellow  230 

v.  Jones  200,  235 

v.  Leland  145 

v.  McMeans  136 

7\  M/rick  156 

v.  Riker  35.  ]in 

v.  Turner  26s 


SECT. 

Wood  v.  Veal  182 

v.  Watkinson  30 

v.  Wood  58,  200 

v.  Wylds  68.  101 

v.  Wylks  105 

Woodbridge  v.  Allen  68,  92 

v.  Austin  8 

v.  Brigham  54 

v.  Planters'   Bank  208 

v.  Wright  8 

Woodburn  v.  Farmers',  Ac.  Bank     172 

Woodbury   1.  Long  183 

v.  Sbackleford  252 

Woodbury  Savings  Bank  v.  Charter 

Oak  Ins.  Co.  42 

Woodcock  v.  Bostic  294 

Woodfin  v.  Anderson  69 

Woodham  ;\  Cline  183 

Woodhouse  v.  Jenkins  173 

v.  Woodhouse  199 

Woodlief  z:  Bragg  86 

Woodman  v.  Fulton  12 

v.  Somerset  34 

Woodrosse  v.  Gieenwood  173 

Woodruff  v.  Houghton  256 

z.  Moore  133,  136 

r.  Woodruff  20,  35 

Woods  -0.  Bank  259 

v.  Buie  11 

v.  Dille  260 

v.  Elliott  188 

v.  Houghton  290 

v.  Irwin  188 

v.  Schroeder  20 

v.  Sherman  146 

v.  Woods  41 

Woodson  v.  Smith  259 

Woodyard  v.  Polsley  188 

Wooley  v.  Osborne  277 

v.  Yarnell  244 

Woolley  v.  Claik  194 

Woonsocket  Sav.  Inst.  v.  Ballou  32,  171 

Wooten  v.  Hele  173 

Wooters  v.  King  77 

Wordsworth  v.  Harley  178 

Workman  v.  Guthrie  266,  270 

v.  Leake  125 

Worley   v.  High  213 

Worm  well  v.  Hailstone  119 

Worth  v.  Simmons  265 


TABLE    OF   CASES. 


CV 


Ili 


Worthington  v.  Grimsditch  105, 113,  176 

v.  Tormey 
Worthley  v.  Emerson 
Wragg  v.  Denham 
Wray  v.  Tuskegee  Ins.  Co. 
Wren  v.  Gayden 

v.  Hollowell 
Wright  v.  Bates 

v.  Eaves 

v.  Gardner 

v.  Hamilton 

v.  Keithler 

v.  King 

v.  Kleyla 

v.  Mattison 

v.  Moore 

v.  Mordaunt 

v.  Morris 

v.  Mut.  Benefit  Ins.  Co. 

v.  Nen   Yjrk  L.  Ins.  Co. 

v.  Oakley 

v.  Paine 

v.  Scott 

v.  Strauss 

v.  Swan 

v.  Tichenor 

v.  Vanderplank 
Wrigley,  Re 

W.  S.  R.  R.  Co.   v.  Stockett 
Wyatt  v.  Hodson  96,  105,  145,  2S5 

v.  Sutton  5S 

Wych  v.  East  India  Co. 
Wylie  v.  Birch 
Wylly  v.  Collins 
Wyman  v.  American  Powder  Co 
Wynne  v.  Cornelison 

-■.  Waring 
Wyoming,  &c.  Co.  v.  Price 
Wyse  v.  Dandridge 


22 

no 

227 

17,  142 

199 

212 

236 

176,  229 

4i 

T25 

II 

20I 

117 

259 

IS2 


42 

42 

II,    12 

Il8,    142 

6 

8 

52 

117,  124 

53 

247 

11 


23S 
178 

215 
20 
276 
199 
265 
20S 


Yale  v.  Eames 
Yancey  v.  Yancey 
Yandes  -•.  Lefavour 
Yarbrough  v.  Newell    221 
Yaies's  Case 
Yates  v.  Hambly 

v.  Wing 

v.  Yates 
Yatter  v.  Smilie 
Yaw  v.  Kerr  64, 

Yea  v.  Fouraker 
Yeager  v.  Woodruff 
Yeary  z>.  Cummins 
Yingling  v.  Hesson 
Yore  v.  Murphy 
York  v.  Bright 
Yost  v.  Grim 
Young  v.  Brown 

v.  Cook 

v.  Dake 

v.  Davis 

v.  Epperson 

v.  Harris 

v.  McCormick 

v.  Mackall  58,  66 

v.  Monpoey 

v.  Waterpark 

v.  Weston 
Youst  v.  Martin 


SECT. 

285 
n 
285,  728 
,  225,  235,  236 
6 
228 


236 

30 

68,  70,  81,  96 

68,  71.  79 

256 

175 

35,  188 

289 

274 

86 

146 

35 

6 

290 

7 

237 

24 

,  194,  212,  25: 

68,  69,  81 

igq 

124 

61 


Z. 

Zacharias  v.  Zacharias 
Zeigler  v.  Hunt 
Zeller  v.  Eckert 
Zent  v.  Hart 
Zoll  v.  Carnahan 
Zuck  v.  Culp 
Zundel  v.  Baldwin 


64,  68,  79,  2co 
120 
260 
286 

79 
212 

259 


STATUTES 


OF 


THE  LIMITATION  OF  ACTIONS 


STATUTES 


OF 


THE  LIMITATION  OF  ACTIONS. 


CHAPTER  I. 
What  are  —  History  of  —  General  Rules. 

Sec.  i.  What  are   Statutes  of   Limita-  Sec.  9.   Distinction  where  Statute  gives 

tion.  and  limits  the  Remedy. 

2.  History  and  Origin  of.  10.   Rule    when    title    to    Personal 

3.  Adverse  Possession.  Property  is  acquired  by  Pos- 

4.  Nature  of  Statutes  of   Limita-  session  under  Slatute  in  one 

tion.  State. 

5.  Principles  on  which  founded.  II.  Constitutionality  of  Limitation 

6.  General    Rules.     Statute  hav-  Acts. 

ing  commenced  to   run  will  12.   What  Statute  governs. 

not  stop.  13.   Effect  of  Change  of  Statute,  as 

7.  Bar  of   Statute   must  be  inter-  to  Crimes. 

posed  by  the  Debtor.  14.    Rule  when  title  to  Land  is  con- 

8.  The  Law  of  Limitations  a  Part  cerned. 

of  the  Lex  Fori. 

Sec.  i.  What  are.  —  Statutes  of  limitation  are  such  legislative 
enactments  as  prescribe  the  periods  within  which  actions  may  be 
brought  upon  certain  claims,  or  within  which  certain  rights  may- 
be enforced ; *  (a)  and  those  statutes  which  merely  restrict  a  statu- 
tory or  other  right  do  not  come  under  this  head,  but  rather  are 
in  the  nature  of  conditions  put  by  the  law  upon  the  right  given. 

1  They  simply  defeat  the  remedy  while  the  civil-law  doctrine  of  prescription 
defeated  the  right  itself.  Billings  v.  Hall,  7  Cal.  1.  Often  these  statutes  not 
only  defeat  the  remedy  for  the  recovery  of  personal  property,  but  also  act  upon 
the  title,  and  defeat  the  rights  of  the  party  against  whom  they  have  run,  so  as  to 
divest  him  of  the  title  thereto  in  any  jurisdiction  Sims  v.  Canfield,  2  Ala.  555; 
Newcombe  v.  Leavitt,  22  Ala.  631;  Fears  v.  Sykes,  35  Miss.  633;  Winburn  v. 
Cochran,  9  Tex.  123. 

(a)  Such  statutes  are  rules  demanded  v.  Brady,  36  Fed.  Rep.   560;   Merrill  v. 

by    the  soundest  principles   of    public  Monticello,  66  id.  165;   Bullion  and  Ex- 

r olicy,  and  are  now  favorably  regarded  change  Bank  v.  Hegler,  93  id.  S90,  894; 

as  statutes  of    repose.     Bell    v.  Morri-  Medlicott  v.   O'Donel,  1    B.   &    B.   166; 

son,    1    Peters    351,    360;  Shepherd    v.  Barclay  v.  Owen,  60  L.  T.  220;  Elder 

Thompson,  122   U.  S.  231,  236;   Mack-  v.  Bradley,  2  Sneed  (Tenn.)  247. 
.all  v.   Casilear,  137   id.   556;    Southard 


2  STATUTES    OF    LIMITATION.  [CHAP.    I. 

Thus,  a  statute  that  prescribes  the  term  of  court  at  which  an 
indorsee  of  a  note  is  required  to  sue  the  maker  in  order  to  hold 
the  indorser  liable,1  or  the  time  within  which  writs  of  error  shall 
be  brought,2  or  a  statute  which  fixes  the  time  within  which  lands 
sold  on  execution  may  be  redeemed,3  or  within  which  a  judgment 
or  other  lien  shall  be  enforced,4  or  which  merely  postpones  a  claim 
unless  enforced  within  a  certain  time,5  or  which  provides  that  a 
certain  class  of  evidence  shall  be  admissible  if  action  is  brought 
within  a  certain  time,6  —  are  not  statutes  of  limitation  within  the 
legal  sense  of  the  term.  But  statutes  which  provide  that  no 
action  shall  be  brought,  or  right  enforced,  unless  brought  or 
enforced  within  a  certain  time,  are  such  statutes  of  limitation, 
even  when  they  do  not  extinguish  the  claim.7 (a). 

The  common  law  knew  no  such  limitation  ;  but  courts  of  equity, 
refusing  to  enforce  stale  demands,  presumed  the  payment  of  a 
bond  or  other  specialty  after  twenty  years,  and  courts  of  law 
adopted  the  same  rule.8     Such  presumption  of   payment  did  not 

'  McDaniel  v.  Dougherty,  42  Ala.  506;   Davidson  v.  Peticolas,  34  Tex.  27. 

5  Pace  v.  Hollaman,  31  Tex.  158;  Trim  v.  McPherson,  7  Coldw.  (Tenn.)  15. 
See  Reynolds  v.  Baker,  6  Coldw.  (Tenn.)  221;  Chandler  v.  Westfall,  30  Tex. 
475;   Ryan  v.  Flint,  id.  382. 

3  Reynolds  v.  Baker,  6  Coldw.  (Tenn.)  221. 

4  Battle  v.  Shivers,  39  Ga.  405;  Chapman  v  Aken,  id.  347;  Dooly  v.  Isbell, 
id.  342. 

5  Chandler  v.  Wesifall,  30  Tex.  475;  Ryan  v.  Flint,  id.  382. 

6  Neville  v.  Northcutt,  7  Coldw.  (Tenn.)  294. 

7  Horlon  v.  Clark,  40  Ga.  412;  McMillan  v.  Werner,  35  Tex.  419.  See  Still- 
well  v.  Coons,  122  N.  Y,  242;   In  re  Will  of  Gouraud,  95  N*.  Y.  256. 

8  Bean  v.  Tonnele,  94  N.  Y.  381, 

(a)  The   weight  of  authority  now   is  before  commencing  a  purely  statutory 

that  the  statute  of  limitations  as  to  per-  action,    such    as   an    action   against  a 

sonal  actions  affects  only  the  remedy,  municipal  corporation  for  injuries  re- 

and    does    not    extinguish     the    right,  suiting  from  a  defective  highway,  the 

Michigan   Ins.  Bank  v.  Eldred,  130  U.  notice  is  a  condition   precedent  to  the 

S.   693,   696;   Hobbs   v.    Nat.    Bank   of  cause  of  action,  since  the  entire  right 

Commerce,  96   Fed.  Rep.   396;   Bruns-  of   action    comes    into    existence    only 

wick    Terminal   Co.  v.  Baltimore  Nat.  when    the    required    notice    is    given; 

Bank,    99   id.   635;  Shaw    v.    Silloway,  but    when     a    notice    is    required    by 

145  Mass.  503,  506;  Currier  v.  Studley,  statute   to  be  given  prior  to  the  com- 

159  id,  17,  25,  and  cases  cited;  Jordan  mencement  of  an  action  to  enforce  a 

v.  Jordan,  85  Tenn.  561;  Miller  v.  Dell,  common-law  right,  the  statute  is  neces- 

[1891]    1    Q.    B.    468.     It  results    from  sarily  in  the  nature  of  a  stalute  of  lim- 

this,    in    matters  of  contract,  that   the  itations  because  the  right  itself  exists 

statute  of  limitations  does  not  become  apart    from    any    statute.      Relyea    v. 

a  part  of  the  contract.     Vore  v.  Hawk-  Tomahawk  Paper  &  Pulp  Co.,  102  Wis. 

eye    Ins.   Co.,    76  Iowa,  548;  Jones   v.  301;    Meisenheimer    v.     Kellogg,     ior> 

German  Ins.  Co.,  no  Iowa,  75,  80.  Wis.  30. 

When  notice  is  required  to  be  given 


§  2.]  HISTORY    AND    ORIGIN    OF.  3 

depend  upon  statute,  and  differed  in  its  effect  from  the  statutory 
limitation,  as  it  did  not  bar  the  action  on  the  original  contract, 
and  any  competent  evidence  which  tended  to  show  that  the  debt 
was  unpaid  was  admissible  for  that  purpose,1  and  it  might  be 
overcome  by  evidence  wholly  insufficient  as  against  the  general 
statute  of  limitations.2 

SEC.  2.  History  and  Origin  of.  —  The  laws  limiting  actions, 
which  relate  to  title  or  contract,  are  merely  the  creation  of  statute. 
At  the  common  law,  though  there  was  no  such  limit,  except  in 
the  single  instance  of  a  fine,  with  proclamations,3  yet,  in  the  case 
of  torts  the  maxim,  "  actio  personalis  moritur  cum  persona," 
applied,  and  the  action  was  there  limited  by  the  duration  of  the 
life  of  either  party. 

Presumption  4  also,    and   probably  the  trial  by  wager  of  law, 

1  Gregory  v.  Com.,  121  Penn.  611;   Reed  v.  Reed,  46  id.  239. 

9  Walker  v.  Robinson,  136  Mass.  280;  Bentley's  Appeal,  99  Penn.  St.  500; 
contra,  see  p.  239;  Shubrick  v.  Adams,  20  S.  C.  49. 

3  See  Co.  Litt.  26  a,  115;  Banning  on  Limitations,  1;  2  Inst.  95;  4  Coke, 
10;  5  Bacon's  Abr.  461;  Spelm's  Glossary,  32;  Story,  Conflict  of  Laws,  §  576; 
United  Slates  v.  Thompson,  98  U.  S.  486;  Bean  v.  Tonnele,  94  N.  Y,  381;  Black 
v.  Piatt,  etc.,  Coal  Co.,  85  Ala.  504*  Harrison  r.  Hefiin.  54  Ala.  552;  Gregory 
-'.  Com.,  121  Penn.  St.  611;  Runner's  Appeal,  id.  649;  Breneman's  Appeal,  id. 
641;  Porter  v.  Nelson,  121  id.  628;  Lash  v.  Von  Neida,  109  id.  207;  Hayes' 
Appeal,  113  id.  3S0;  Wall  v.  Robson,  2  N.  &  McCord  (S.  O498;  People  v.  Gil- 
bert, 18  Johns.  (N.  Y.)  227;  Wilcox  v.  Finch,  20  id.  475;  In  re  Neilley,  95  N.  Y. 
382;  Wells  v.  Washington,  6  Munf.  (Va.)  532;  Criss  v.  Criss,  28  W.  Va.  388; 
Tucker  v.  Baker,  94  N.  C.  162;  Buie  v.  Buie,  2  Ired.  (N.  C.)87;  Van  Rensselaer 
v.  Livingston,  12  Wend.  (N.  Y.)  490. 

*  The  common-law  presumption  from  the  non-payment  of  a  debt  for  twenty 
years,  that  it  had  been  paid,  threw  the  burden  of  establishing  non-payment 
upon  the  party  seeking  to  enforce  it;  this  presumption  still  exists,  notwith- 
standing the  statutes  of  limitations.  Carr  v.  Dings,  54  Mo.  95;  Lord  Ellen- 
borough,  in  Williams  v.  Jones,  13  East,  449.  The  right  of  action  descended  to 
the  plaintiff's  representative,  against  the  representative  of  the  defendant,  for  an 
unlimited  time.  Banning  on  Limitations,  10.  Bui.  in  actions  for  torts,  the  rule 
actio  personalis  moritur  cum  persona  prevailed;  and  on  the  death  of  either  party, 
all  right  of  action  died  with  the  person;  such  is  now  the  rule,  except  in  so  far 
as  the  right  is  saved  by  statute.  To  remedy  this  evil,  the  statute  of  21  James  I. 
c.  16,  was  passed,  limiting  the  time  within  which  actions  arising  out  of  con- 
tracts, and  a  certain  class  of  torts,  should  be  brought.  This  statute  is  printed 
infra,  in  the  Appendix.  There  is  no  direct  mention  in  this  act  of  the  important 
action  of  assumpsit;  but  it  was  held  to  embrace  this  action,  as  being  fairly 
within  the  reason  of  the  act,  if  not  fairly  embraced  in  the  action  of  trespass  on 
the  case.  Bacon's  Abr.  Limitations,  E  1;  Harris  v.  Saunders,  4  B.  &  C.  411; 
Piggott  v.  Rush,  4  Ad.  &  El.  912;  Inglis  v.  Haigh,  8  M.  &  W.  769.     This  statute 


4  STATUTES   OF   LIMITATION.  [CHAP.   I. 

operated  as  a  check  on  stale  demands.1  When  the  abuses  from 
stale  demands  became  unendurable,  the  legislature  did  not  at  first 
fix  any  certain  and  progressive  period  within  which  actions  should 
be  commenced,  but  from  time  to  time  chose  for  that  purpose 
certain  notable  times;  and  in  this  way,  by  virtue  of  various  stat- 
utes, the  beginning  of  the  reign  of  King  Henry  the  First,  the 
return  of  King  John  from  Ireland,  the  journey  of  Henry  the 
Third  into  Normandy,  and  the  coronation  of  King  Richard 
the  First,  were  successively  chosen  for  barring  suits  and  actions, 
the  cause  of  which  arose  previous  to  their  respective  dates.2  The 
early  statutes  applied  to  realty  alone,  and,  though  productive  of 
immediate  relief,  the  advantage  was  only  temporary,  and  in  the 
reign  of  Henry  the  Eighth  a  more  commodious  course  was  taken, 
so  that,  in  the  language  of  Lord  Coke,  ''by  one  constant  law 
certain  limitations  might  serve  both  for  the  time  present  and  for 
all  times  to  come."  3  This  was  effected  by  the  statute  32  Hen. 
VIII.  c.  2,4  by  which  the  limitation  of  time,  in  every  case,  was 
reduced  to  a  fixed  interval  between  the  accrual  of  the  right  and 
the  commencement  of  the  action.  These  intervals  were,  in  the 
various  cases,  periods  of  thirty,  fifty,  and  sixty  years.  The  statute 
21  James  I.  superseded  all  prior  statutes,  and,  with  some  excep- 
tions, is  substantially  in  force  or  followed  in  many  of  the  States, 
and  practically  in  all  of  them;  and,  except  where  essential 
changes  have  been  made,  the  decisions  of  the  English  courts 
under  that  statute  are  generally  accepted  by  our  courts  as  afford- 
ing sound  rules  of  construction.5 

did  not  embrace  specialties,  or  contracts  under  seal,  judgments,  or  other  matters 
of  record  properly  coming  under  thai  head;  but  these  were  provided  (or  by  a 
later  statute,  3  &  4  Wm.  IV.  c.  27,  which  made  it  necessary  tu  bring  an  action 
for  such  debts  within  twenty  years, 

1  By  this  method  a  defendant  was  allowed  to  clear  himself  by  his  own  oath 
and  that  of  eleven  compurgators.  In  the  Code  Napoleon,  Civil,  2275,  some- 
thing analogous  to  the  wager  of  law  is  preserved,  but  the  purpose  is  to  prevent 
abuse  from  the  law  of  limitations.  Wager  at  law  only  applied  to  an  action  of 
debt  on  a  simple  contract,  and  of  detinue.  The  action  of  assumpsit  did  not 
come  into  general  use  until  after  Slade's  Case,  7  Mod.  112,  in  the  year  1603,  and 
as  through  it  wager  at  law  was  avoided,  it  cook  the  place  of  actions  of  debt  on 
simple  contracts,  as  trover  took  the  place  of  detinue.  Wilkinson  on  Limita- 
tions; 3  Blackstone's  Com.  341;  2  Bouv.  Law  Die.  (Wager  of  Law). 

''  Hale's  Common  Law,  152;  Co.  Litt.  114^,  115  «. 

'  2  Inst.  95. 

4  Co.  Litt.  115(1. 

*Waldcn  v.  Gratz,  1  Wheat.  (U.  S.)  292.     In  the  statute  21  James  I.  c.  16,  the 


§§  3,  4-J  NATURE   OF.  5 

SliC.  3.  Adverse  Possession. — The  statute  of  James  applied 
to  real  as  well  as  personal  actions,  and  was  the  principal  act  of 
limitation  in  England  as  to  both,  until  the  adoption  of  the  statute 
3  &  4  Wm.  IV.  c.  27.  Prior  to  the  latter  statute,  the  construction 
of  the  statute  of  James,  relative  to  realty,  had  become  almost 
hopelessly  confused,  especially  as  to  the  old  doctrine  of  adverse 
possession.  Indeed,  so  great  had  become  the  doubts  as  to  the 
true  construction  of  this  portion  of  that  statute,  that  Lord  Mans- 
field once  said  of  it : '  "  The  more  we  read,  the  more  we  shall  be 
confounded."  In  England  this  statute  was  greatly  modified  by 
the  statute  3  &  4  Wm.  IV.  This  statute  greatly  simplified  the 
law  by  abolishing  the  doctrine  of  adverse  possession,  etc.,  in  the 
old  sense ;  and  although  in  England  some  important  changes 
have  been  made2  in  these  statutes,  especially  so  far  as  relates  to 
the  length  of  limitation,  the  main  features  of  the  statute  Wm.  IV. 
have  been  left  undisturbed,  (a)  In  this  country  there  is  more 
diversity  in  the  statutes  relating  to  realty  than  in  reference  to 
personal  actions;  but  this  matter  will  be  treated,  so  far  as  our 
statutes  are  concerned,  in  a  separate  chapter. 

Sec.  4.  Nature  of  Statutes  of  Limitations. — Statutes  of  limi- 
tations were  formerly  regarded  with  little  favor,  and  the  courts 
devised  numerous  theories  and  expedients  for  their  evasion  ;  but 
latterly  they  are  considered  as  beneficial,  as  resting  on  sound 
public  policy,  and  as  not  to  be  evaded  except  by  the  methods 
provided    therein.3     Indeed,  they   are    now    termed    statutes    of 

rights  of  the  crown  were  to  be  barred  at  the  expiration  of  sixty  years  from  the 
beginning  of  the  then  session,  viz.  February  19,  1623.  The  limit  of  legal 
memory  still  dates  from  the  time  of  Richard  I. 

1  Taylor  v.  Horde,  1  Burr.  60;  2  Smith's  L.  C.  (10th  ed.),  559. 

!  37  &  38  Vict.  c.  57. 

3  Reed  v.  Clark,  3  McLean  (U.  S.)  480;  Clemenlson  v.  Williams,  8  Cranch 
(U.  S.)  72;  Pillow  v.  Roberts,  13  How.  (U.  S.)  472;  Bell  v.  Morrison,  1  Pet.  (U.  S.) 
351;  M'Cluny  v.  Silliman,  3  id.  270;  Hawkins  ?'.  Barney,  5  id.  457;  Bradstreet 
v.  Huntington,  id.  402.  But,  to  avail  himself  of  it,  a  party  musi  bring  himself 
strictly  within  its  provisions.  Russell  v.  Barton,  6  McLean  (U.  S.)  577;  San- 
born v.  Stetson,  2  Story  (U.  S.)  481.     Such  statutes  are  regarded  "  as  beneficial." 

(a)  Now,  in   England,  all   actions   of  don,  [189S]  2  Q.  B.  223.     The  doctrine 

debt  secured   by  mortgage,  or  charged  that  adverse  possession   not  only  bars 

upon  or  payable  out  of  land,  including  a  suit   bul   gives  a  good  title,   is  held 

secutity  by  lien,   are  taken  out  of  §  3  by    some    courts    to   apply  also  to  ad- 

of    the    statute    of   James   (enacted    in  verse  possession  of  personal  property. 

1623;,    by    §    8    of    the    Real    Property  See    Currier     v.     Studley,     159    Mass. 

Limitation  Act  (1874).     Barnes  v.  Glen-  17,22. 


6  STATUTES   OF    LIMITATION.  [CHAP.   I. 

repose,1-  and  are  regarded  as  essential  to  the  security  of  all  men  : 2 
and  opinion,  professional  and  general,  has  been  in  favor  of  a  con- 
tinuous augmentation  of  their  stringency,  as  is  evinced  by  the 
numerous  stringent  changes  made  in  their  provisions  by  the  legis- 
latures of  nearly  all  the  States  within  the  last  few  years,  especially 
as  to  the  character  of  proof  required  to  remove  the  statutory  bar, 
and  as  to  the  periods  of  limitation,  and  the  extension  of  their  provi- 
sions to  a  large  class  of  cases  not  embraced  in  former  statutes. 
These  statutes  are  declared  to  be  "  among  the  most  beneficial  to 
be  found  in  our  books. "  3  "  They  rest  upon  sound  policy,  and  tend 
to  the  peace  and  welfare  of  society  ;  "  4  and  are  so  construed  as  to 
effectuate  the  intention  of  the  legislature,  although  in  individual 
cases  they  may  produce  hardship.  But  if  parties  will  not  settle 
their  business  matters  within  reasonable  periods  before  human 
testimony  is  lost  and  human  memory  fails,  on  pain  of  losing  the 
right  to  a  remedy  thereon,  not  the  law,  but  the  party  is  responsi- 
ble for  the  hardship  entailed.  Laws  of  limitation  are  certainly 
founded  on  correct  and  salutary  principles,  although,  in  isolated 
cases,  they  may  be  productive  of  great  hardship;  therefore, 
although  they  are  to  be  encouraged ;  yet,  as  they  are  acts  which 
take  away  existing  rights,  they  should  always  be  construed  with 
reasonable  strictness,  and  in  favor  of  the  rights  sought  to  be 
defeated  thereby,  so  far  as  is  consistent  with  their  letter  and 
spirit.      In  this  country  it  was  at  one  time  seriously  questioned 

Hart's  Appeal,  32  Conn.  540;  Peck  v.  Botsford,  7  id.  172;  Weed  v.  Bishop,  id. 
128;  Marshall  v.  Dalliber,  5  id.  480;  Lord  v.  Shaler,  3  id.  131.  They  are  looked 
upon  "  as  furnishing  a  presumption  of  payment,  rather  than  as  a  statutory  bar 
to  a  valid  claim."  Hinman,  C.  J.,  in  Hart's  Appeal,  ante.  In  People  v.  Judge 
of  Wayne  Co.,  27  Mich.  13S,  the  court  says:  "  Evading  the  statute  by  amending 
the  declaration,  ought  not  to  be  followed  at  the  present  day.  Statutes  of  limi- 
tations are  now  generally  regarded  as  statutes  of  repose,  and  construed  with 
the  same  favor  as  other  statutes,  to  effect  legislative  intent." 

1  In  Roberts  v.  Pillow,  1  Hempst.  (U.  S.)  624,  the  court  says:  "  Statutes  of 
limitations  are  founded  on  sound  public  policy,  are  statutes  of  repose,  and  are 
not  to  be  evaded  by  a  forced  construction."      In  Bell  v.  Morrison,  1  Pet.  (U.  S.) 

,<><>.  Story,  J.,  gives  these  statutes  his  unqualified  approval.  And  see  Martin 
v.  Tally,  72  Ala.  23;  Shepherd  v.  Thompson,  122  U.  S.  231. 

2  2  Salk.  421. 

her  v.  Ilarnden,  1  Paine  (U.  S.)  55. 

1  McLean,  J.,  in    M'Clunv    v.   Silliman,  3   Pet.  (U.  S.)  270.     See  also  Green  v. 

Johnson,  3  G.  iV    J.  (Md.)  3^;   McCarthy  v.  White,  21  Cal.  495;  Richmond  v. 

Maryland   Ins.  Co.,   8  Cr.  (U.  S.)  84;   Phillips  v.   Pope,  10  B.  Mon.  (Ky.)  163; 

Mi  '  in-  in  7 .  I ',,i  I  .rock,  3  Abb.  App.  (NI.  Y.)  129;   Dickinson  v.  McCamy,  5  Ga.  486. 


^§  5,  6.]  RULE    WHEN   TIME    BEGINS   TO    RUN.  7 

whether  these  statutes  were  not  unconstitutional,  as  interfering 
with  the  rights  of  property,  guaranteed  by  the  paramount  law  of 
the  Constitution ;  but  it  is  now  well  settled  that  to  make  or 
repeal  them  is  an  interference  with  a  vested  right  only  when  they 
are  made  to  act  retrospectively.1 

SEC.  5.  Principles  on  which  founded. — According  to  Pothier, 
the  principles  upon  which  laws  of  limitation  and  prescription  are 
founded  depend  in  part  upon  the  presumption  of  payment  or 
release  arising  from  the  lapse  of  time,  inasmuch  as  it  is  not  com- 
mon for  a  creditor  to  wait  so  long,  and  prescriptions  are  founded 
on  the  ordinary  course  of  things,  "ex  eo  pier  unique  fit"  and 
partly,  also,  because  a  debtor  ought  not  to  be  obliged  to  take 
care  forever  of  his  acquittances,  proving  a  demand  satisfied ;  and 
is  a  time  properly  limited  beyond  which  he  shall  not  be  under 
the  necessity  of  producing  them.2  He  also  regards  them  as  partly 
for  the  punishment  of  the  creditor  in  failing  to  institute  his  action 
within  the  time  allowed  by  the  law.3  It  is  now  generally  con- 
ceded that  the  purpose  of  these  statutes  was,  and  is,  to  compel 
the  settlement  of  claims  within  a  reasonable  period  after  their 
origin,  while  the  evidence  upon  which  their  enforcement  or  resist- 
ance rests  is  yet  fresh  in  the  minds  of  the  parties  or  their  wit- 
nesses, and  that  no  presumption  arises  either  as  to  payment  or 
otherwise,  from  the  mere  lapse  of  the  statutory  period,  more  than 
would  naturally  arise  as  to  any  stale  demand.4 

SEC.  6.  General  Rules.  Statute  having  commenced  to  run  will 
not  stop.  —  Certain  general  rules,  of  almost  universal  application, 

1  Society  for  the  Propagation  of  the  Gospel  v.  Wheeler,  2  Gall.  (U.  S.)  105. 
In  Bank  of  Alabama  v.  Dalton,  9  How.  (U.  S.)  522,  a  State  statute  barring  judg- 
ments obtained  in  another  State  prior  to  its  passage  unless  suit  is  brought 
thereon  within  two  years  after  the  passage  of  the  act,  was  held  constitutional. 
But  in  Christmas  v.  Russell,  5  Wall.  (U.  S.)  290,  a  State  statute,  which  provided 
that  "  no  action  shall  be  maintained  on  any  judgment  or  decree  rendered  by 
any  court  without  this  State  against  any  person  who,  at  the  time  of  the  com- 
mencement of  the  action  in  which  such  judgment,  etc.,  was  or  shall  be  rendered, 
was  or  shall  be  a  resident  of  this  State,  in  any  case  where  the  cause  of  action 
would  have  been  barred  by  any  act  of  limitation  of  this  State  if  such  suit  had 
been  brought  therein,"  was  held  unconsiitutional  and  void,  because  it  impaired 
the  right  to  enforce  a  valid  judgment  entitled  to  full  faith  and  credit  in  the  State 
in  which  suit  is  brought  thereon.     See  Edmunds  v.  Waugh,  L.   R.  1   Eq.  421. 

2  Evans's  Pothier,  644. 

3  Id. 

4  McCarthy  v.  White,  21  Cal.  495. 


8  STATUTES   OF    LIMITATION.  [CHAP.   I. 

should  be  first  noticed.  And  it  is  proper  to  say  here,  that  while 
the  statutes  of  the  various  States  apparently  differ  in  their  essential 
provisions,  there  is,  after  all,  no  material  difference  in  their  general 
results,  or  the  principles  controlling  them;  they  are  all  founded 
upon  the  statute  of  James,  and  retain  the  essential  provisions  of 
that  statute,  with  some  modifications  or  additions,  so  that  the 
principles  evolved  from  the  cases  are  equally  applicable  in  all  the 
States. 

One  of  the  most  important  and  universal  rules  (which  is  not, 
however,  without  exception)  is,  that  time,  when  it  has  once 
commenced  to  run  in  any  case,  will  not  cease  to  do  so  by  reason 
of  any  subsequent  event  which  is  not  within  the  saving  of  the 
statute.1  Thus,  it  has  been  held  that  it  is  no  answer  to  a  plea 
of  the  statute,  unless  otherwise  provided  therein,  that,  after  the 
cause  of  action  accrued,  and  after  the  statute  had  commenced  to 
run,  the  debtor  within  six  years  died,  and  that  by  reason  of  litiga- 
tion as  to  the  right  of  probate,  an  executor  of  his  will  was  not 
appointed  until  after  the  expiration  of  six  years,  and  that  the 
action  was  brought  within  a  reasonable  time  after  probate  was 
granted.2     In  some  of  our  State  courts,  and  in  the  United  States 

1  Conover  v.  Wright,  6  N.  J.  Eq.  613;  Roberts  v.  Moore,  3  Wall.  Jr.  (U.  S.) 
292;  De  Kay  v.  Darrah,  14  N.  J.  L.  28S;  Wright  v.  Scott,  4  Wash.  (U.  S.)  16; 
Pinckney  v.  Burrage,  31  N.  J.  L.  21;  Thorpe  v.  Corwin,  20  id.  311;  Bradstreet 
v.  Clarke,  12  Wend.  (N.  Y.)  602;  Peck  v.  Randall,  1  Johns.  (N.  Y.)  165;  Kistler 
v.  Hereth,  75  Ind.  177;  Cole  v.  Runnells,  6  Tex.  272;  Cherallier  v.  Durst,  id. 
239;  Den  v.  Richards,  15  N.  J.  L.  347;  McCov  v.  Nichols,  4  How.  (Miss.)  31; 
Pearce  v.  House,  Term  Rep.  (N.  C.)  305;  Fitzhugh  v.  Anderson,  2  H.  &  M. 
(Va.)  289;  Hudson  v.  Hudson,  6  Munf.  (Va.)  352;  Fewell  v.  Collins,  3  Brev. 
(S.  C.)  286;  Parsons  v.  M'Cracken,  9  Leigh  (Va.)  495;  Faysoux  v.  Prather,  1  N. 
&  McCord  (S.  C.)  296;  Rogers  v.  Hillhouse,  3  Conn,  398;  Tyson  v.  Britton,  6 
Tex.  222;  Crozier  v.  Gano,  1  Bibb  (Ky.)  257.  Thus,  except  where  the  statute 
otherwise  so  provides,  the  fact  that  the  action  was  enjoined  will  nol  prevent  the 
statule  from  running.  Barker  v.  Miller,  16  Wend.  (N.  Y.)  592;  Berrien  v. 
Wright,  26  Barb.  (N.  Y.)  20S;  Sands  v.  Campbell.  31  N.  Y.  345;  Prideaux  v. 
Webber,  1  Lev.  31.  See  Prideaux  v.  Webber,  supra.  Bacon's  Abr.  Limitations, 
238  (E),  6;   Doyle  v.  Wade,  23  Fla.  90. 

•  Rhodes  v.  Smethurst,  4  M.  &  W.  42:  Daniel  v.  Diy,  51  Ala.  431:  Meeks  v. 
Vassanlt,  3  Sawyer,  206;  Hapgood  v.  Southgate,  21  Vt.  584:  Conant  v.  Hitt,  12 
id.  2S5;  Sambs  v.  Stein,  53  Wis.  569;  Baker  v.  Brown,  18  111.  91;  Pipkin  v. 
Hewlett,  17  Ala.  291;  Baker  v.  Baker,  13  B.  Mon.  (Ky.)  406;  Hayman  v.  Keally, 
3  Cranch  (C.  C.)  325;  Tynan  v.  Walker,  35  Cal.  634;  Hull  v.  Dearly,  7  Bush 
(Ky.)  687:  I'.rown  v.  Merrick,  16  Ark.  612;  Stewart  v.  Spedden,  5  Md.  433; 
M-  C  illough  v.  Speed,  3  McCall  (S.  C.)  455-  I"  Johnson  v.  Wren,  3  Stew.  (Ala.) 
84,  the  court   held   that  the  statute  of  limitations  does   not  begin  to  run   until 


§6.]  RULE    WHEN    TIME   BEGINS   TO    RUN.  9 

courts,  an  important  exception  to  this  rule  has  been  adopted, 
which,  although  not  within  the  letter,  is  perhaps  within  the  spirit 
of  the  statutes  of  the  several  States  and  their  saving  clauses, 
which  is,  that  the  statute  does  not  run  during  a  period  of  civil 
war  as  to  matters  in  controversy  between  citizens  of  the  oppos- 
ing belligerents; '  but,  as  this  exception   is  predicated  upon  the 

there  is  some  one  to  sue.  or  liable  to  be  sued,  but  that  when  the  statute  once 
begins  to  run,  the  death  of  either  party  does  not  impede  its  operation.  See  also 
Granger  v.  Granger,  6  Ohio,  35;  Beauchamp  v.  Mudd,  2  Bibb  (Ky.)  537;  Nicks 
v.  Martindale,  1  Harp.  (S.  C.)  135.  But,  where  the  cause  of  action  arises  after 
the  intestate's  death,  it  is  considered  as  existing  only  from  the  time  when  there 
was  some  one  capable  of  suing,  and  consequently,  in  tht  case,  the  statute  does 
not  begin  to  run  until  administration  is  granted.  (<i)  Geiger  v.  Brown,  4  MrCord 
(S.  C.)  423;  Fishwick  v.  Sewell,  4  H.  &  J.  (Md.)  399;  Writt  v.  Elmore,  2  Bailey 
(S.  C.)  595;  Clark  v.  Hardiman,  2  Leigh  (Va.)  347.  In  Duroure  v.  Jones,  4  T.  R. 
300,  Lord  Kenyon  says:  "  I  never  heard  it  doubted  whether,  when  any  of  the 
statutes  of  limitations  had  begun  to  run,  a  subsequent  disability  would  stop 
their  running.  If  the  disability  would  have  such  an  operation  on  one  of  those 
staiutes,  it  would  also  on  others.  I  am  clearly  of  opinion,  on  the  words  of  the 
statute  of  fines,  and  on  the  uniform  construction  of  all  the  statutes  of  limita- 
tions down  to  the  present  moment,  and  the  generally  received  opinion  of  the 
profession  on  the  subject,  that  the  question  ought  not  to  be  disturbed."  Proceed- 
ings in  bankruptcy  under  the  Federal  laws  do  not  suspend  the  operation  of  the 
statute  of  limitation.  It  is  well  settled  that  the  pendency  of  proceedings  under 
the  insolvent  laws  of  a  State  does  not  suspend  the  statute  of  limitations  upon 
debts  provable  in  insolvency,  since  such  proceedings  do  not  prevent  the  creditor 
from  bringing  an  action  upon  his  debt.  Collester  v.  Hailey,  6  Gray  (Mass.),  517; 
Stoddard  v.  Doane,  7  id.  387;  Richardson  v.  Thomas,  13  id.  381.  So  it  has  been 
held  that  the  representation  of  the  estate  of  a  deceased  person  as  insolvent  and 
the  appointment  of  commissioners  do  not  suspend  the  operation  of  the  statute 
limiting  actions  against  administrators  to  two  years  from  the  time  of  their  giv- 
ing bonds.  Tarbell  v.  Parker,  106  Mass.  347;  Richardson  v.  Allen,  116  id.  447. 
Bankruptcy  statutes  do  not  generally  suspend  the  right  of  a  creditor  to  com- 
mence an  action,  but  only  prevent  him  from  prosecuting  it  to  final  judgment 
until  the  bankrupt  has  the  opportunity  to  obtain  his  discharge.  Porter  v.  Cum- 
mings,  108  Ga.  797. 

1  Coleman  v.  Holmes,  44  Ala.  124;  Adger  v.  Alston,  15  Wall.  (U.  S.)  555; 
Stewart  v.  Kohn,  11  id.  493;  Brown  v.  Hiatt,  15  id.  177;  Levy  v.  Stewart,  n  id. 
244;  Chappelle  v.  Olney,  1  Sawver,  401.  This  applies  to  statutes  relating  to 
appeals  also.  The  Protector,  g  Wall.  (U.  S.)687.  See,  on  the  general  proposition, 
A.hnent  v.  Zaun,  40  Wis.  622;  Jones  v.  Nelson,  51  Ala.  471;  Johnston  v.  Gill,  27 
Gratt.  (Va.)  587;  Edwards  v.  Jarvis,  74  N.  C.  315;  Hawkins  ».  Savage,  75  id. 
133.  This  doctrine,  so  far  it  has  grown  up  under  acts  of  the  legislatures  in  the 
States  lately  in  rebellion  suspending  the  statutes  during  the  civil  conflict,  is  cor- 
rect; but,  independent  of  those  acts  or  resolutions,  the  only  ground  on  which 
the   doctrine   could   stand,   is   that   the   suspension    is  fairly  implied  from    the 

(a)  See  Amy  v.  Watertown,  130  U.  S.  320,  325. 


IO  STATUTES    OF    LIMITATION.  [CHAP.   I. 

ground  that  the  courts  are  not  open  to  belligerents,  it  does  not 
apply  to  questions  arising  between  residents  of  the  same  State, 
or  as  to  those  who  are  not  residents  of  either  belligerent  sec- 
tion.1^) The  general  rule  is,  that  whatever  the  courts  may- 
think  the  legislature  would  have  done  if  it  had  foreseen  a  certain 
contingency,  yet  a  case  coming  fairly  within  the  limitation 
imposed  by  the  statute  cannot  be  excepted  from  its  operation, 
unless  it  also  comes  fairly  within  the  exceptions  named  therein.2 

emergency;  this  position  opens  the  door  for  many  exceptions,  and  seems  to 
border  largely  on  the  usurpation  of  legislative  powers  by  the  courts;  yet,  with 
us,  by  the  cases  cited,  the  doctrine  is  well  established.  Semmes  v.  Hartford 
Ins.  Co.,  13  Wall.  (U.  S.)  158;  Wiggle  v.  Owen,  45  Miss.  691;  McCutchen  v. 
Dougherty,  44  id.  419;  Coley  v.  Henry,  42  Ga.  61;  Clepper  v.  Hutchinson,  33 
Tex.  120;  Bradford  v.  Shine,  13  Fla.  393;  Kirkland  v.  Krebs,  34.  Md.  93;  Selden 
v.  Preston,  11  Bush  (Ky.)  191;  Pitzer  v.  Burns,  7  W.  Va.  63;  Ross  v.  Jones,  22 
Wall.  (U.  S.)  576;  McMerty  v.  Morrison,  62  Mo.  140;  Gooding  v.  Varn,  Chase's 
Dec.  (U.  S.)  286;  Bell  v.  Hanks,  57  Ga.  272;  Eddins  v.  Graddy,  28  Ark.  500; 
Hall  v.  Denckla,  28  id.  506;   Randolph  v.  Ward,  29  id.  23S. 

1  Hanger  v.  Abbott,  6  Wall.  (U.  S.)  532;  Smith  v.  Charter  Oak  Ins.  Co.,  64 
Mo.  330.  Nor  does  it  apply  to  a  mere  personal  trust,  which  could  have  been 
executed  by  ihe  trustee  without  the  intervention  of  the  courts.  Mayo  v.  Cart- 
wright,  30  Ark.  407. 

2  The  Sam  Slick,  2  Curtis  C.  C.  480.  In  Hill  v.  Suprs.  Ren.  Co.,  119  N.  Y. 
344,  53  Hun  (N.  Y.)  194,  in  an  action  under  the  statute,  to  recover  compensa- 
tion for  property  destroyed  in  consequence  of  a  mob  or  riot,  an  action  had  been 
begun  in  the  county  court  for  the  same  cause  within  the  three  months  limited 
by  the  act,  in  which  the  complaint  was  dismissed  for  want  of  jurisdiction  to 
entertain  actions  for  a  sum  exceeding  $1,000;  this  action  was  then  commenced 
after  the  lapse  of  the  statutory  period.  It  was  held  that  the  action  was  not 
maintainable;  that  as  it  was  brought  under  a  special  law,  the  limitation  was  so 
incorporated  with  the  remedy  given  as  to  make  it  an  integral  part  of  it  as  a 
condition  precedent;  and  that  the  provision  of  the  code  that  when  an  action  is 
commenced  within  the  time  limited  and  is  terminated  "  in  any  other  manner 
than  by  voluntary  discontinuance,  dismissal  for  neglect  to  proceed,  or  a  final 

(a)  See  The  Protector,  9  Wall.  (U.  S.)  n    Wall.     (U.    S.)    508,    514;     Amy    v. 

687;   Semmes  v.    Hartford   Ins.  Co.,  13  Watertown,    130   U.    S.    320,  326.     See 

id.  158:  Harrison  7'.  Myer,  92  U.  S.  in;  Elgee  v.    Lovell,   Woolw.  (U.  S.)    102; 

Iman     v.     Blunt,     147    id.     647 ;  Levine  v.  Taylor,  12  Mass.  8;  Kershaw 

Brown    v.    Walker,    161  id.     591,    607.  v.    Kelsey,    100   Mass.    561;   Bishop   v. 

In    time   of    war,    the   running   of    the  Jones,  28  Tex.  294, 

te  is  stopped  rather  bv  the  loss  of         The  constitutional  and  statutoiy  pro- 

abilitv  to  sin- through  the  government's  visions  of  Texas,  suspending  statutes 

prohibition  of  intercourse  than  the  loss  of  limitation  during  the  civil   war  and 

of  the  1  i.'ht ;  a  (  reditor  then  has  not  the  after  (from  r86l  to  1870),  were  intended 

full    time    allowed    bv    the   statute  for  to  relieve  those  against  whom  a  limi- 

:,  and  its  suspension  exists  as  well  tation  might  be  pleaded,  not  those  who 

re    th'-   government  is  the  creditor  might  set   up  the   statute   in   defense. 

as  where  the  «  red i tor  is  a  citizen  of  the  Collier  7>.  Couts,  92  Tex.  234. 

rnment.     United  States  v.  Wiley, 


§  6.]  DISABILITIES.  I  I 

In  other  words,  as  the  legislature  makes  the  law  and  the  courts 
apply  it,  they  cannot  extend  it  to  cases  to  which  it  does  not 
apply,  or  except  from  its  operation  cases  clearly  within  its  pro- 
visions, and  not  excepted  from  its  operation.1  The  suspension 
by  implication,  held  by  the  courts  to  have  been  wrought  during 
the  late  civil  war,  can  only  be  qustified  upon  the  ground  of  para- 
mount necessity,  and  can  only  be  applied  so  far  as  such  necessity 
exists.  Consequently,  as  to  citizens  of  other  States,  as  to  whom 
the  courts  of  the  insurrectionary  States  were  closed,  it  is  held 
that  such  suspension,  during  such  period 2  existed  upon  the 
ground  that,  by  a  superior  power,  the  creditor  or  party  has  been 
disabled  to  sue,  without  any  default  of  his  own,  and  therefore 
that  none  of  the  reasons  which  induced  the  enactment  of  these 
statutes  applies  while  the  actual  disability  so  raised  exists;3  so 
soon  as  the  disability  ceased,  the  suspension  ceased  4  nor  did  it 
exist  except  as  to  the  citizens  of  those  States  to  whom  such 
courts  were  closed.5 

The  rule  as  to  disabilities  is  that,  when  the  statute  begins  to 
run,  it  is  not  arrested  by  any  subsequent  disability,  unless 
expressly  so  provided  in  the  statute ;  and  a  person  who  claims 
the  benefit  of  the  general  exceptions  in  the  statute  can  only  avail 
himself  of  such  disabilities  as  existed  when  the  right  of  action 
first  accrued.6  (a)  Thus,  the  pendency  of  administration,  the  ina- 
bility of  the  heir  to  maintain  an  action  to  recover  real  estate  by 
reason  thereof,  and  the  fact  that  the  present  right  of  action  is  in 
the  administrator,  do  not  constitute  such  a  disability  on  the  part 

judgment  on  the  merits,  the  plaintiff  may  commence  a  new  action  for  the  same 
cause  within  one  year  after,"  such  termination,  did  not  apply. 

1  United  States  v.  Maillard,  4  Ben.  459;  Semmes  v.  Hartford  Ins.  Co.,  13 
Wall.  (U.  S.)  158. 

2  Coleman  v.  Holmes,  44  Ala.  124;  Levy  v.  Stewart,  11  Wall.  (U.  S.)  244; 
Mixer  v.  Sibley,  53  111.  61. 

3  Braun  v.  Sauerwein,  10  Wall.  (U.  S.)  218;    Stiles  v.  Easley,  51  111.  275. 

4  Stiles  v.  Easley,  ante  ;  Braun  v.  Sauerwein,  ante. 

5  Smith  v.  Charter  Oak  Ins.  Co.,  64  Mo.  330.  But  see  Ross  v.  Jones,  22  Wall. 
(U.  S.)  576,  where  it  was  held  that  the  statute  was  suspended  as  to  citizens  of 
other  of  I  he  rebel  States,  as  well  as  to  citizens  of  the  loyal  States. 

6  Hogan  v.  Kurtz,  94  U.  S.  773;  Hodges  v.  Darden,  51  Miss.  199;  Bozeman  v. 
Browning,  31  Ark.  364;  Watts  v.  Gunn,  53  Miss.  502;  Hogg  v.  Ashman,  83 
Penn.  St.  80;  Smith  v.  Newby,  13  Mo.  159;  Pendergrast  v.  Foley,  8  Ga.  1.  See 
chapter  on  Disabilities  in  Personal  Actions,  post. 

(a)  See  e.  g.,  Davis  v.  Hart,  123  Cal.  384;  Kelley  v.  Gallup,  67  Minn.  169. 


12  STATUTES    OF    LIMITATION.  [CHAP.   I. 

of  the  heir,  within  the  meaning  of  a  statute  which  excepts  from 
its  operation  persons  under  a  disability  when  the  right  of  action 
first  accrues.  The  fact  that  the  heir  cannot  sue  because  the  right 
of  action  is,  for  the  time  being,  vested  in  the  administrator,  does 
not  constitute  a  disability,  the  administrator  being  in  such  cases 
the  trustee  or  representative  of  the  heir,  and  not  only  is  the 
exclusive  right  to  bring  an  action  vested  in  him,  but  the  law  also 
imposes  upon  him  the  duty  to  bring  it;  and  if  he  fails  to  do  so, 
whereby  any  right  is  lost  to  the  heir,  he  is  responsible  therefor.1  [a) 
So,  too,  it  is  held  that  when  the  statute  began  to  run  during  the 
life  of  the  devisor,  it  is  not  arrested  by  any  disability  in  the 
devisee;2  and  that,  when  it  begins  to  run  against  the  ancestor,  it 
is  not  suspended  by  any  statutory  disability  in  the  heir  at  the 
time  of  the  descent  cast.3 

It  may  be  stated,  as  the  uniform  result  of  the  decisions,  that 
the  statute  of  limitations  does  not  deprive  a  party  of  his  remedy, 
unless  he  has  been  guilty  of  the  laches  or  default  contemplated 
therein,4  and  that  the  statute,  unless  otherwise  provided,  applies 

1  Meeks  ■:>.  Vassault,  3  Sawyer  (U.  S.  C.  C.)  206. 
s  Bozeman   v.  Browning,  31  Ark.  364. 

3  Rogers  v.  Brown,  61  Mo.  187;  Swearingen  v.  Robertson,  39  Wis.  462. 

4  The  following  early  English  cases  arose  under  a  statute  similar  to  that 
existing  in  most  of  the  States.  In  Cary  v.  Stephenson,  2  Salk.  421,  where  C. 
was  indebted  to  A.,  who  died;  B.  received  the  money,  and  afterwards  the 
plaintiff's  wife  took  out  administration  to  A.,  and  within  six  years  after  the 
grant  of  administration,  but  not  within  six  years  after  the  receipt  of  the  money, 
the  plaintiff  sued  B.  for  money  had  and  received,  it  was  held  that  the  statute 
of  limitations  did  not  bar  the  action,  because  the  plaintiff's  title  commenced  by- 
taking  out  the  letters  of  administration;  although  the  money  was  not  received 
by  the  defendant  until  after  the  death  of  the  intestate,  there  were  no  laches  on 
the  part  of  the  plaintiff,  because  there  was  there  no  cause  of  action  until  an 
administrator  was  appointed,  when  the  money  became  money  received  to  his 
use.  In  Sanford's  Case,  Cro.  Jac.  61,  it  was  held  that  where  before  the 
expiration  of  an  existing  term  the  grantee  yied,  and  at  the  expiration  of 
the  first  term  the  lessor  entered  and  levied  a  fine  before  administration  granted, 
the  administrator  had  five  years  to  enter  in,  because,  savs  the  court,  "  no  one 
had  the  right  of  entry  before."  This  case  arose  under  the  statute  of  fines,  4 
Henry  VII.  See  also  Wilcocks  v.  Huggins,  2  Stra.  907;  Lethbridge  v.  Chap- 
man, cited  Titzg.  171;  Comyns'  Digest,  Temps,  G.  17;  Hall  7>.  Wybourn,  Carth. 
136;  Jolliffe   v.    Pitt,  2  Vern.  694;  Granger  v.  George,  5   B.  &  C.  149,  7  D.  &  R. 

[a)  That  probate  <>r  administration  to  a  sale,  see  ///  re  Ebb's  Estate,  31  L. 
proceedings  may,  under  the  presenl  R.  Ir.  95.  Equity  cannot  relieve 
English  practice,  suspend  the  statute  against  the  special  statutes  of  limi ta- 
in favor  "f  an  incumbrancer,  who  has  tions  applicable  to  probate  matters. 
therein  proved  his  claim  and  proceeded  Beekman   v.   Richardson,  150  Mo.  430. 


§6.]  DISABILITIES.  13 

only  to  a  disability  or  disabilities  existing  at  the  time  the  right 
accrues,  and  that  no  after-accruing  disability  will  stop  its  opera- 

729;  Short  v.  McCarthy,  3  B.  &  Aid.  626;  Howell  v.  Young,  5  B.  &  C.  259.  In 
M*urray  v.  East  India  Co.,  5  B.  &  Aid.  204,  it  was  held  that,  in  an  action  by  an 
administrator  on  a  bill  of  exchange  payable  (o  the  intestate,  but  accepted  after 
bis  death,  the  statute  did  not  begin  to  run  until  administration  granted. 
Abbott,  C.  J.,  says:  "  It  cannot  be  said  that  a  cause  of  action  exists  unless 
there  be  also  a  person  in  existence  capable  of  suing."  In  this  case  Mr.  Hope 
had  dispatched  some  bills  to  an  agent  in  England,  and  himself  embarked  in  a 
vessel  for  England;  the  vessel  was  lost,  and  he  perished  with  it.  His  agent  in 
England,  acting  under  a  power  of  attorney  given  by  Mr.  Hope  before  he  died, 
presented  the  bills  to  the  East  India  Company,  and  they  were  paid  to  the 
agent.  It  turned  out  that  the  agent  had  exceeded  his  authority  in  indorsing 
the  bills;  and  it  was  held  that  the  East  India  Company  could  not  defend  against 
another  action  on  the  bills  by  the  administrator  of  Mr.  Hope,  on  the  ground 
that  mure  than  six  years  had  elapsed  since  the  date  of  the  bills,  because  the 
right  of  action  did  not  exist  in  the  lifetime  of  Mr.  Hope,  therefore  there  was  no 
power  of  bringing  an  action  until  administration  was  taken  out;  the  action 
never  accrued  to  anybody  until  the  letters  of  administration  were  granted; 
from  that  time,  therefore,  according  to  the  words  of  the  statute,  the  statute 
began  to  run.  Skeffington  v.  Whitehurst,  3  Y.  &  Col.  34.  In  Webster  v. 
Webster,  10  Ves.  93,  a  plea  of  the  statute  was  allowed,  because  Lord  Eldon 
held,  upon  the  bill,  that  the  defendant  had  possessed  himself  of  the  personal 
estate  of  the  debtor  (in  whose  lifetime  the  debt  had  accrued)  and  might  have 
been  sued  within  six  ^ears  of  the  death  as  executor  de  son  tort.  See  Perry  v. 
Jenkins,  1  My.  &  C.  114;  Douglas  v.  Forrest,  4  Bing.  686.  In  Duroure  v.  Jones, 
4  T.  R.  300,  Lord  Kenyon,  C.  J.,  says:  "  I  never  heard  it  doubted,  till  the  dis- 
cussion of  this  case,  whether,  when  the  statutes  of  limitation  had  begun  to  run, 
a  subsequent  disability  would  stop  their  running.  "  He  states  that  to  be  the 
uniform  construction  of  the  statutes,  and  the  opinion  of  the  profession.  The 
courts  have  sometimes  refined  in  holding  that  the  statute  has  not  begun  to  run, 
but  none  break  in  on  the  principle  thus  stated.  The  statute  21  Jac.  I.  c. 
16,  itself,  says  nothing  about  defendants,  except  in  the  clause  giving  a  year 
after  the  reversal  of  an  outlawry.  The  first  case  in  which  its  construction 
came  in  question  was  Prideaux  v.  Webber,  1  Lev.  31,  where  it  was  held  that  a 
plea  of  the  statute  was  a  bar,  notwithstanding  a  replication  that  when  the  cause 
of  action  accrued,  rebels  had  usurped  the  government,  and  none  of  the  king's 
courts  were  open;  for  there  was  no  exception  in  the  act  of  such  a  case.  At  the 
time  of  the  Revolution,  again,  there  was  an  interval  during  which  the  courts 
were  not  sitting,  and  an  Act  of  Parliament,  the  1  W.  &  M.  c.  4,  was  passed 
expressly  to  provide  for  the  case;  enacting  that  the  time  between  the  10th  of 
December,  1688  and  the  12th  of  March  following  (a  period  of  ninety  two  days), 
shoul  1  not  be  reckoned  in  qaare  impedit  or  the  statute  of  limitations.  If  this 
time  would  have  been  left  out  of  the  computation  on  the  true  construction  of 
the  statute  of  James,  no  legislative  provision  of  the  kind  would  have  been 
necessary.  The  next  statute  which  passed  relating  to  the  subject  was  that  of 
the  4  Anne,  c.  16,  prior  to  which  there  had  been  decisions  on  the  statute  of 
James,  holding  the  exception  in  section  7  to  apply  only  to  the  case  of  plaintiffs 


14  STATUTES   OF   LIMITATION.  [CHAP.   I. 

tion.1  The  rule  may  be  illustrated  thus:  If  a  female,  not  of  age 
when  the  title  to  land  by  descent  accrues,  should  marry  before 
she  becomes  of  age,  she  would  not  be  within  the  saving  operation 
of  the  statute  except  so  long  as  her  infancy  existed,  and  when 
she  became  of  full  age  she  could  not  set  up  the  coverture  as  an 
excuse  for  not  having  brought  her  action  within  the  time  limited 
by  the  statute;  the  statute  having  commenced  to  run  before  her 
coverture  the  latter  could  not  be  tacked  to  the  former.2  (a) 

Where  the  statute  provided  that  all  appeals  from  a  decree 
should  be  taken  within  two  years  from  the  time  of  the  entry 
thereof,  and  from  a  decree  rendered  on  April  17,  1878,  the  appeal 
was  not  taken  until  Sept.  6.  1883,  and  the  appellant  set  up 
the  disability  of  imprisonment  as  cause  for  the  delay,  this  was 
held  insufficient  to  excuse  the  delay  and  prevent  the  operation 
of  the  statute.3  Bradley,  J.,  said:  "It  is  true  that  the  express 
words  of  this  statute  refer  to  disabilities  existing  '  at  the  time  ' 
the  cause  of  action  accrues,  and  do  not  literally  include  disabili- 
ties arising  afterwards.  The  courts,  however,  held  that  such  was 
not  only  the  literal,  but  the  true  and  sensible  meaning  of  the  act ; 
and  that  to  allow  successive  disabilities  to  protract  the  right  to 
sue  would,  in  many  cases,  defeat  its  salutary  object,  and  keep 
actions  alive   perhaps   for  a    hundred   years   or   more;    that   the 

absent  beyond  seas.(^)  Hall  v.  Wybourn,  Carth.  136;  Chevely  v.  Bond,  id.  226. 
Murray  v.  East  India  Co.  and  Cary  v.  Stevenson,  show  that  no  cause  of  action, 
within  the  meaning  of  the  statute  accrues,  until  there  is  somebody  capable  of 
suing,  and  somebody  capable  of  being  sued;  but  if  a  cause  of  action  has  once 
accrued,  it  cannot  be  stopped,  except  in  some  one  of  the  modes  provided  in  the 
statute. 

•Jackson  v.  Johnson,  5  Cow.  (N.  Y.)  74;  Jackson  v.  Wheat,  18  Johns.  (N.  Y.) 
40;   Demarest  v.  Wynkoop,  3  Johns.  Ch.  (N.  Y.)  129. 

2  The  doctrine  that  no  disability  not  existing  when  ihe  right  of  action  accrued 
avoids  the  statute,  is  ably  discussed  in  McDonald  v.  Hovey,  no  U.  S.  6iq. 

3  Ibid. 

{a)  When      the     statute    once    com-  cumulative  disabilities  are  those  of  the 

mences    to    run,    different    disabilities  same  person,  and  not  those  of  different 

cannot   be    used   cumulatively  to  sus-  persons.     Patton  v.   Dixon,  105  Tenn. 

pend  it.     McDonald  v.  Hovey,  no  U.  S.  97,  101.     In  England,  as  issue  in  tail 

619;     Davis    v.    Coblens,    174    id.    719,  claim  under  the  tenant  in  tail,  if  there 

725.      Under  the  statute  of  Tennessee,  is  no  disability  on  ihe  latter's  part  when 

providing    that  "  no   person   can  avail  the    statute    begins    to    run,    it    is  not 

himself  of  a  disability  unless  it  existed  stopped  by  any  subsequent  disability, 

when  his   ri^ht  of  action  accrued,  but  Murray  v.  Watkins,  62  L,  T.  996. 

when  two  or  more  disabilities  then  ex-  (/>)  See  Amy  v.  Watertown,  130  U.  S. 

ist,  the  limitation  does  not  attach  until  320,  326,  9  S.  Ct.  537. 
all   are  removed,"  such   concurrent  or 


§6.]  DISABILITIES.  1 5 

object  of  the  statute  was  to  put  an  end  to  litigation,  and  to 
secure  peace  and  repose;  which  would  be  greatly  interfered  with 
and  often  wholly  subverted,  if  its  operation  were  to  be  suspended 
by  every  subsequently  accruing  disability. ' '  '     The  conclusion  was 

1  Citing  and  reviewing  Slowel  v.  Zouch,  Plowd.  353«;  Doe  v.  Jones,  4  T.  R. 
300,  Doe  v.  Jesson,  6  East,  80;  Walden  v.  Gratz's  Heirs,  1  Wheat.  (U.  S.)  292; 
Mercer  t.  Selden,  1  How.  (U.  S.)  37,  51;  Eager  v.  Commonwealth,  4  Mass.  182; 
Fkzhugh  v.  Anderson,  2  Hen.  &  Mun.  306;  Parsons  v.  M'Cracken,  9  Leigh,  495; 
Demarest  v.  Wynkoop,  3  Johns.  Ch.  (N.  Y.)  129;  Bunce  v.  Wolcott,  2  Conn.  27. 
In  most  of  the  State  statute  of  limitation  the  clauses  of  exception  or  provisos  in 
favor  of  persons  laboring  under  disabilities  employ  terms  equivalent  to  those 
used  in  the  English  statute,  expressly  limiting  the  exception  to  cases  of  disability 
existing  when  the  cause  of  action  accrues.  But  this  is  not  always  the.case.  The 
statutes  of  New  York  in  force  prior  to  the  Revised  Statutes  limited  the  time  for 
bringing  real  actions  to  twenty-five  years  after  seisin  or  possession  had,  and  the 
proviso  in  favor  of  persons  laboring  under  disabilities  was  in  these  words: 
"  Provided  always,  that  no  part  of  the  time  during  which  the  plaintiff,  or  persons 
making  avowry  or  cognizance,  shall  have  been  within  the  age  of  twenty-one 
years,  insane,  feme  covert,  or  imprisoned,  shall  be  taken  as  a  part  of  the  said 
limitation  of  twenty-five  years."  1  Rev.  Laws,  1S13,  p.  1S5,  §  2;  2  Greenleaf's 
Laws,  95,  §  6.  It  will  be  observed  that  this  proviso  is  stronger  in  favor  of  cumu- 
lative and  subsequently  accruing  disabilities  than  that  of  the  act  of  Congress 
which  we  are  now  considering;  yet  the  Supreme  Court  of  New  York,  and  subse- 
quently this  court,  gave  it  the  same  construction  in  reference  to  such  disabilities 
as  has  always  been  given  to  the  English  statutes  of  fines  and  of  limitations.  See 
Bradstreet  v.  Clarke,  12  Wend.  (N.Y.)  602;  Thorp  v.  Raymond,  16  How.  (U.S.)  247. 
The  statute  of  limitations  of  Texas  is  another  instance  in  which  language  is 
used  quite  different  from  that  of  the  English  statute.  According  to  its  literal 
meaning,  if  one  disability  should  prevent  the  statute  from  running  until  another 
supervened,  the  latter  would  be  equally  effectual  to  interrupt  it.  But  the 
Supreme  Court  of  Texas,  in  White  v.  Latimer,  12  Texas,  61,  held  otherwise,  and 
decided  that  one  disability  cannot  be  tacked  on  to  another;  but  that  the  long- 
.established  rule  in  construing  statutes  of  limitations  must  be  applied.  The  evi- 
dent meaning  of  §  1008  of  the  U.  S.  Rev.  Stats,  is  that  if  the  party  is  an  infant, 
insane,  or  in  prison  when  the  judgment  or  decree  is  entered,  and  therefore 
when  he  or  she  becomes  entitled  to  the  writ  of  error  or  appeal,  the  time  to  take 
it  is  extended.  Where  English  statutes,  like  the  statute  of  frauds  and  the 
statute  of  limitations,  have  been  adopted  into  our  own  legislation,  the  known 
and  settled  construction  of  those  statutes  by  courts  has  been  considered  as 
silently  incorporated  into  the  acts,  or  has  been  received  with  all  the  weight  of 
authority.  Even  when  inadvertent  changes  have  been  made  by  incorporating 
different  statutes  together,  or  by  a  revision,  it  has  been  held  not  to  change  their 
original  construction.  Pennock  v.  Dialogue,  2  Pet.  1,  18;  Sedgwick  on  Stats. 
363;  In  te  Murphy,  3  Zab.  180;  Taylor  v.  Delancy,  2  Caines  Cas.  143.  See 
Yates's  Case,  4  Johns.  317;  Theriat  v.  Hart,  2  Hill,  380;  Parmalee  v.  Thomp- 
son, 7  Hill,  77;  Goodell  v.  Jackson,  20  Johns.  693;  Croswell  v.  Crane,  7  Barb. 
191;  Mooers  v.  Bunker,  29  N.  H.  420;  Duramus  v.  Harrison,  26  Ala.  326; 
Hughes  v.  Farrar,  45  Me.  72;  Burnham  v.  Stevens,  33  N.  H.  247;  Overfield  v. 


l6  STATUTES    OF    LIMITATION.  [CHAP.   I. 

that,  as  the  appellant  was  free  from  an  disability  for  several 
months  after  the  entry  of  the  decree  appealed  from,  the  statute 
commenced  to  run  at  that  time,  and,  therefore,  the  time  for  tak- 
ing the  appeal  expired  several  years  before  it  was  actually  taken. 
The  doctrine  held  in  this  case  is  so  thoroughly  established  by 
the  decisions  of  the  courts,  not  only  in  England  but  also  in  this 
country,  as  to  hardly  need  the  citation  of  an  authority  in  its  sup- 
port. The  cases  holding  the  doctrine  are  very  numerous.1  But 
if  at  the  time  when  the  right  accrued  a  party  is  under  two  or 
more  disabilities,  as  if  she  is  a  married  woman,  an  infant,  and 
insane,  she  may  avail  herself  of  either  of  them.2     Where  a  cause 

Sutton,  i  Met.  (Ky.)62i;  McNamara  ?a  Minnesota  Central  R.  Co.,  12  Minn.  388; 
Conger  v.  Barker,  ir  Ohio  St.  1;  Young  v.  Dake,  1  Seld.  (N.  Y.)  463. 

1  Swearingen  v.  Robertson,  39  Wis.  462;  Jones  v.  Lemon,  26  W.  Va.  629; 
Handy  v.  Smith,  30  W.  Va.  195;  Wilson  v.  Harper,  25  W.  Va.  179:  Hogan  v. 
Kurtz.  94  U.  S.  773;  Dowell  v.  Tucker,  46  Ark.  438;  McLeran  v.  Benton,  73  Cal. 
329;  Doyle  v.  Wade,  23  Fla.  90;  Wade  v.  Doyle,  17  Fla.  522;  Downing  v.  Ford, 
9  Dana  (Ky.)  391;  Riggs  v.  Dcoley,  7  B.  Mon.  (Ky.)  236;  Clark  v.  Jones,  16  B. 
Mon.  (Ky.)  121;  Scott  v.  Haddock,  ir  Ga.  258;  Everett  v.  Whitfield,  27  Ga.  133; 
Millington  v.  Hill,  47  Ark.  301;  Kisller  v.  Hereth,  75  Ind.  177;  Clark  v.  Trail, 
1  Met.  (Ky.)35;  Blackwell  v.  Bragg,  78  Va.  529;  Grimes  v.  Watkins,  59  Tex. 
133;  Grigsby  v.  Peck,  57  Tex.  142;  Becton  v.  Alexander,  27  Tex.  659-  Marstel- 
ler  v.  Marstellsr,  93  Penn.  St.  350;  Hollingshead's  Appeal,  103  id.  158;  Amole's 
Appeal,  115  id.  356;  Douglas  v.  Irvine,  126  id.  643;  Keyser's  Appeal,  124  id.  80; 
Cozzens  v.  Franan,  30  Ohio  St.  491;  Hinde  v.  Whitney,  31  Ohio  St.  53;  Oliver 
v.  Pullam,  24  Fed.  Rep.  127;  Rogers  v.  Brown,  61  Mo.  187;  Billon  v.  Larimore, 
37  Mo.  375;  Campbell  v.  Laclede  Gas  Co.,  84  Mo  352,  and  119  U.  S.  445;  North 
v.  James,  61  Miss.  761;  Hodges  v.  Darden,  51  id.  199:  Watts  v.  Gunn,  53  id. 
502;  Tippin  v.  Coleman,  61  id.  516;  Trafton  v.  Hill,  80  Me.  503;  Bonney  v. 
Stoughtnn,  122  111.  536;   Keil  v.  Healey,  84  111.  104;  Fritz  v.  Joiner.  54  111.  101. 

1  Bunce  v.  Wolcott,  2  Conn.  34.  See  also  Davis  v.  Cooke,  3  Hawks  (N.  C.) 
608;  Demarest  v.  Wynkoop,  3  Johns.  Ch.  (N.  Y.)  129;  Smith  v.  Burtis,  9  Johns. 
(X.  Y.)  174;  Wilson  v.  Kilcannon,  4  Hayw.  (Tenn.)  182;  Willson  v.  Betts,  4  Den. 
(N.  Y.)  201;  Jackson  v.  Johnson,  5  Cow.  (N.  Y.)  74;  Blackwell  v.  Bragg,  78  Va. 
529;  North  v.  James,  61  Miss.  761;  Sims  v.  Bardoner,  86  Ind.  87;  Sims  v.  Ever- 
hardt,  102  U.  S.  300.  In  the  language  of  Edmond,  J.,  in  Bunce  v.  Wolcott, 
,  "  it  will  always  be  an  answer  to  an  objector  to  such  an  election  to  say, 
the  disability  on  which  I  rely  is  pointed  out  by  the  proviso;  it  existed  at  the 
time  my  right  or  title  accrued;  I  have  prosecuted  my  claim  within  the  time 
allowed  after  its  discontinuance,  and  come  within  both  the  letter  and  the  spirit 
of  the  law.  But,"  he  adds,  "  where  a  single  disability  only  exists  at  the  time 
the  right  accrues,  and  the  five  years  after  the  discontinuance  of  that  disability 
have  elapsed,  the  statute  immediately  attaches,  and  the  party  so  neglecting  to 
prosecute  can  never  avail  himself  of  any  other  or  supervenient  disability, 
because  the  statute  re.  ognizes  no  other  than  such  as  actually  existed,  or  should 
exist,  when  the  right  firs)  1  <>mmenccd,  and  every  after  disability  may  be  said  to 
want,  and   is,  in  fact,  destitute  of  that  essential  qualification."     In  an   English 


§  7-]  MUST   BE    PLEADED.  1 7 

of  action  accrues  in  favor  of  the  estate  of  a  deceased  person,  as 
where  by  statute  a  light  of  action  is  given  to  an  executor  or 
administrator  of  a  person  killed  by  the  negligence  of  a  corpora- 
tion, it  is  held  that  the  cause  of  action  is  not  complete,  and  con- 
sequently does  not  arise,  until  an  executor  or  administrator  is 
appointed,  so  that  the  statute  of  limitations  does  not  begin  to 
run  until  such  appointment  is  made.1 

SEC.  7.  The  Bar  of  the  Statute  must  be  interposed  by  the  Debtor. 
—  Another  general  rule  of  great  practical  importance  is,  that  the 
bar  of  the  statute  must  be  interposed  by  the  diligence  of  the 
debtor  and  as  early  as  possible,2  —  usually,  unless  otherwise  pro- 
case,  Sturt  v.  Mellish,  2  Atk.  610,  Lord  Hardwicke,  in  commenting  upon  the 
effect  of  several  coexisiing  disabilities  in  one  person,  said:  "  If  a  man  both  of 
non-sane  memory  and  out  of  the  kingdom  come  into  the  kingdom,  and  then  go 
out  of  the  kingdom,  —  his  non-sane  memory  continuing,  —  his  privilege  as  to 
his  being  out  of  the  kingdom  is  gone;  and  his  privilege  as  to  non-sane  memory 
will  begin  from  the  time  he  returns  to  his  senses."  Butler  v.  Howe,  13  Me. 
397;  Keeton  v.  Keeton,  20  Mo.  530;  Jordan  v.  Thornton,  7  Ga.  517;  Demarest 
v.  Wynkoop,  supra. 

All  disabilities  which  save  the  operation  of  the  statute  of  limitations  are  those 
which  are  created  by  the  statute  itself;  and  unless  the  statute  makes  a  certain 
disability  a  cause  for  suspending  the  operation  of  the  statute,  there  can  be  no 
suspension,  however  great  may  be  the  hardships  which  ensue.  In  all  its 
aspects  and  operations  the  statute  is  arbitrary.  Forster  v.  Patterson,  17  Ch. 
Div.  132;  Kinsman  v.  Rouse,  17  id.  104;  Jones  v.  Lemon,  26  W.  Va.  629;  Amy 
v.  Watertown,  130  U.  S.  320;  Rowell  v.  Patteson,  76  Me.  196;  Bickle  v.  Chris- 
man,  76  Va.  678;  Fairbanks  v.  Long.  91  Mo.  628:  In  re  Griffith,  35  Kan.  377; 
Chicago,  etc.,  R.  R.  Co.  v.  Jenkins,  103  111.  588;  Miller  v.  Lesser,  71  Iowa,  147; 
State  v.  Pavey,  82  Ind.  543;  Kendall  v.  United  States.  107  U.  S.  123. 

'Andrews  v.  Hartford,  eic,  R.  R.  Co.,  34  Conn.  57;  Hobart  v.  Conn.  Turn- 
pike Co.,  15  Conn.  145. 

9  In  France,  the  objection  may  be  taken  at  any  stage  of  the  proceedings. 
Code  Civil,  2224.  Such  also  is  the  provision  in  Louisiana.  4  Griffith's  Annual 
Law  Reg.  686.  But  generally  in  this  country  it  must  be  interposed  at  the 
earliest  opportunity.  Mclver  v.  Moore,  1  Cranch  (U.  S.)  90;  Wilson  v.  Turber- 
ville,  id.  492;  Marsteller  v.  M'Clean,  id.  550,  579;  Thompson  v.  Afflick,  2  id.  46; 
Beatty  v.  Van  Ness,  id.  67.  If,  however,  a  new  declaration  or  complaint  is 
riled,  setting  up  a  new  cause  of  action,  the  statute  runs  until  such  new  declara- 
tion is  filed,  and  may  be  pleaded  thereto.  Holmes  v.  Trout,  7  Pet.  (U.  S.)  171; 
Miller  v.  Mclntyre,  6  id.  61.  If  new  parties  are  brought  in  as  defendants,  the 
statute  runs  as  to  them  until  they  are  actually  cited  in,  and  they  may  plead  it, 
although,  as  to  the  original  defendants,  it  has  not  run.  Alexander  v.  Pendle- 
ton, 8  Cranch  (U.  S.)462;  Miller  v.  Mclntyre.  ante.  The  same  rule  has  been 
applied  where  the  declaration  in  an  action  of  ejectment  has  been  amended  by 
aiding  a  new  demise  in  the  name  of  another  party  asserting  a  different  title. 
Sicard  v.  Davis,  6  Pet.  (U.  S.)  124.  In  an.  early  English  case  it  was  held  that 
[stats,  of  lim.  —  2] 


1 8  STATUTES   OF   LIMITATION.  [CHAP.   I. 

vided  by  statute,  on  the  pleadings  before  the  hearing,  and  that 
it  will  not  be  raised  by  the  court  unsolicited ; '  also,  that  the  pro- 
tection afforded  by  the  statute  may  be  waived  by  the  debtor,  the 

the  statute  was  an  absolute  bar  to  a  claim  upon  which  it  had  run,  and  conse- 
quently that  it  operated  as  a  bar  to  an  action  by  its  own  force,  and  without 
being  pleaded.  Brown  v.  Hancock,  Cro.  Car.  115.  But  the  question  coming 
before  the  court  soon  afterwards,  the  judges  were  equally  divided.  Frankersley 
v.  Robuison,  id.  163.  Later  it  became  well  settled  that  a  person  could  not  avail 
himself  of  the  statute  unless  he  set  it  up  by  plea.  Puckel  v.  Moore,  Vent. 
191;  Gould  v.  Johnson,  2  Ld.  Raym.  83S;  Kirkman  v.  Siboni,  4  M.  &  W.  339; 
Brickett  v.  Davis,  21  Pick.  (Mass.)  404;  Robbins  v.  Harvey,  5  Conn.  335;  Peg- 
ram  v.  Stoltz,  67  N.  C.  144;  Pearall  v.  Dwight,  2  Mass.  87;  Chambers  v.  Cham- 
bers, 4  G.  &  J.  (Md.)  349;  Parker  v.  Irwin,  47  Ga.  405;  Merryman  v.  State,  5  H. 
&  J.  (Md.)425;  Jackson  v.  Varick,  2  Wend.  (N.  Y.)  294.  And  even  in  those 
States  where  it  is  held  that  a  person  may  avail  himself  of  the  statute  by 
demurrer,  it  is  held  that,  unless  the  bar  appears  from  the  declaration,  the 
statute  must  be  pleaded.  Davenport  v.  Short,  17  Minn.  24;  Frosh  v.  Swett,  2 
Tex.  485;  Sturges  v.  Burton,  8  Ohio  St.  215;  Lewis  v.  Alexander,  51  Tex.  578. 
That  the  statute  must  be  pleaded,  see  Capen  v.  Woodrow,  51  Vt.  106;  Hines  v. 
Potts,  56  Miss.  346.  But  it  has  been  held  that  in  actions  against  the  govern- 
ment, under  a  statute  authotizing  a  claimant  to  sue  it  if  his  action  was  brought 
within  six  years  from  the  time  the  right  of  action  accrued,  the  courts  are  bound 
to  take  notice  of  the  statute,  and  that  the  statute  itself  in  such  cases  is  in  effect 
a  plea  of  the  statute  of  which  the  courts  are  bound  to  take  notice.  Here  the 
statute  confers  the  right  of  action  and  subjects  the  right  to  a  condition,  viz. 
that  suit  shall  be  brought  within  a  certain  time;  and,  unless  the  condition  is 
not  complied  with,  the  right  does  not  exist.  Kendall  v.  United  States,  14  Ct. 
of  CI.  (U.  S.)  122. 

1  To  be  available,  the  statute  must  be  pleaded  or  interposed  as  a  bar  by 
answer,  where  such  practice  prevails,  or  by  notice  under  the  general  issue;  and 
the  proper  plea,  where  the  statute  is  interposed  to  bar  an  action  upon  a  simple 
contract,  is  non  acctevit  infra  sex  annos.  Parker  v.  Kane,  4  Wis.  1;  Peck  v. 
Cheney,  id.  249;  Humphrey  v.  Persons,  23  Barb.  (N.  Y.)  313;  Young  v.  Epper- 
son, 14  Tex.  618;  Tazewell  v.  Whittle,  13  Gratt.  (Va.)  329;  Havlin  v.  Stevenson, 
30  Iowa,  371;  The  Swallow,  Olc.  (U.  S.)  334;  Neale  v.  Walker,  1  Cr.  (U.  S.  C. 
C)  57;  Mclver  v.  Moor,  id.  90;  Gardner  v.  Lindo,  id.  78;  Rivers  v.  Washington, 
34  Tex.  267;  Robbins  v.  Harvey,  5  Conn.  335;  Pegram  v.  Stoltz,  67  N.  C.  144; 
Wisecarver  v.  Kincaid,  83  Penn.  St.  too;  Parker  v.  Irwin,  47  Ga.  405;  Robinson 
v.  Allen,  37  Iowa,  27;  Tarbox  v.  Adams  County,  34  Wis.  558.  In  Retzer  v. 
Wood,  109  U.  S.  185,  Nov.,  1883,  it  was  held  that  in  the  absence  of  a  statutory 
rule  to  the  contrary,  the  defense  of  a  statute  of  limitations  is  not  raised  in  plead- 
ing, or  on  the  trial,  or  before  judgment,  cannot  be  availed  of.  In  a  suit  to 
recover  back  internal  revenue  taxes,  tried  by  the  Circuit  Court  without  a  jury, 
the  court  having  found  the  facts,  and  held  that  the  taxes  were  illegally  exacted, 
but  that  the  suit  was  barred  by  a  statute  of  limitation,  rendered  a  judgment  for 
the  defendant.  On  a  writ  of  error  by  the  plaintiff,  the  record  not  showing  that 
this  question  was  raised  before  judgment,  and  the  conclusion  of  law  as  to  the  ille- 
gality of  the  taxes  being  upheld,  the  court  reversed  the  judgment  and  directed 
a  judgment  for  the   plaintiff   to   be  entered   below.     Storm  v.  United  States,  94 


§  7-]  MUST   BE    PLEADED.  1 9 

best  possible  proof  of  such  waiver  being  a  payment.  It  is  proba- 
ble, however,  that  this  rule  is  applicable  solely  to  cases  where  by 
the  statute  the  remedy  only,  not  the  right,  is  destroyed.1  (a) 

U.  S.  76;  Upton  v.  McLaughlin,  105  id.  64.0.  (a)  In  New  York,  under  the  code, 
the  statute  must  be  set  up  by  way  of  answer.  Sands  v.  Si.  John.  36  Barb.  (N. 
Y.)  628;  Bihin  v.  Bihin,  17  Abb.  Pr.  (N.  Y.)  19;  Coiton  v.  Maurer,  3  Hun 
(N.  Y.)  552.  The  plaintiff  cannot  avail  himself  of  the  statute  against  a  counter- 
claim unless  he  replies  the  statute  thereto.  Clinton  v.  Eddy,  1  Lans.  (N.  Y.)  61. 
But  he  may  interpose  the  statute  against  a  set-off  not  the  subject  of  counter- 
claim, although  it  is  not  specially  pleaded.  Mann  v.  Palmer,  2  Keyes  (N.  Y.) 
177;  Jacks  v.  Moore,  1  Yeates  (Penn.)  391.  In  Kentucky,  under  the  code, 
matters  in  avoidance  of  a  plea  of  the  statute  need  not  be  pleaded,  but  may  be 
proved.  Harris  v.  Moberly,  5  Bush  (Ky.)  556.  In  all  cases,  unless  otherwise 
provided  by  statute,  the  statute  must  be  specially  pleaded,  or  it  is  treated  as 
waived.  Borders  v.  Murphy,  78  111.  81;  Hitchcock  v.  Harrington,  6  Johns.  (N. 
Y.)  290;  Sears  v.  Shafer,  6  N.  Y.  268;  Fairchild's  Case,  24  Wend.  (N.  Y.)  381; 
Boggs  v.  Bard,  2  Rawle  (Penn.)  102;  Heath  v.  Page.  48  Penn.  St.  130;  Gulick 
v.  Loder,  13  N.  J.  L.  63.  And  when  the  statute  is  pleaded,  the  plaintiff  must 
reply  specially.  Webster  v.  Newbold,  4r  Penn.  St.  482;  Brand  v.  Longstreet, 
4  N.  J.  L.  325;  Crosby  v.  Stone,  2  id.  988.  In  Minnesota,  the  statute  must  be 
pleaded,  unless  the  complaint  on  its  face  clearly  shows  that  it  has  run.  Daven- 
port v.  Short,  17  Minn.  24.  In  Arkansas,  while  under  the  Code,  §  in,  it  is 
optional  with  a  party,  where  the  claim  appears  to  be  barred,  upon  the  face  of 
the  declaration  or  complaint,  to  set  up  the  statute  either  by  demurrer  or  answer, 
yet  if  the  complaint  shows  on  its  face  that  the  claim  is  not  barred  when  it  in 
fact  is,  the  defense  can  only  be  made  by  answer.  McGehee  v.  Blackwell,  28 
Ark.  27.  In  some  of  the  States  it  is  held  that,  where  the  plaintiff's  pleadings 
show  on  their  face  that  his  demand  is  barred  by  statute,  a  demurrer  showing 
the  fact  can  be  interposed.  Hudson  v.  Wheeler,  34  Tex.  356.  But  the  bar  of 
the  statute  must  appear  affirmatively  from  the  plaintiff's  pleadings.  Moulton 
v.  Walsh,  30  Iowa,  361.  The  statute  can  never  be  interposed  by  a  general 
demurrer.  Rivers  v.  Washington,  supra.  In  Ohio,  where  the  bar  of  the  statute 
appears  upon  the  face  of  the  complaint,  advantage  of  it  may  bs  taken  by 
demurrer;  but  the  demurrer  is  waived  by  a  subsequent  answer  to  the  merits. 
Vose  v.  Woodford,  29  Ohio  St.  245;  Collins  v.  Mack,  31  Ark.  684.  In  North 
Carolina,  advantage  of  the  statute  cannot  be  taken  by  demurrer,  but  must  be 
set  up  in  the  answer.     Green  v.  North  Carolina  R.  Co.,  73  N.  C.  524. 

1  In  Perkins  v.  Guy,  55  Miss.  153,  it  was  held  that  the  statute  of  the  locus  con- 
tractus could  not  be  pleaded  in  bar  in  a  foreign  jurisdiction,  where  both  parties 
were  resident  in  the  place  where  the  contract  was  made  during  the  whole  statu- 
tory time,  unless  such  statute  goes  to  the  extinction  of  the  right  itself.  But 
that,  where  the  right  of  action  is  extinguished  by  the  statute  of  the  locus  con- 
tractus, effect  will  be  given  thereto  by  the  lex  fori.     In  Iowa,  by  statute,  the 

(a)  In  suits  against  the  United  Slates  4S3.     As   to   limitations  on  such  suits 

in  the  Court  of  Claims,  no  officer  of  the  in   that   court,  see   Waddell    v.   United 

government   has   authority  from    it   to  States,   (25    Ct.    CI.)   7    L.     R.    A.    861, 

waive   a    statute  of   limitations.      Finn  and    note;  Miller   v.  United    States,  34 

v.    United   States,    123    U.   S.   227,  232;  Ct.  CI.  335, 
De  Arnaud  v.  United  States,  151  U.  S. 


20  STATUTES    OF    LIMITATION.  [CHAP.   I. 

Not  only  must  the  statute  be  pleaded,  but,  when  it  is  set  up 
in  bar  of  the  action,  the  plaintiff  must  reply  thereto,  and  set  up 
such  matters  as  he  relies  upon  in  avoidance  of  its  operation,1  in 
such  a  manner  as  to  apprise  the  defendant  of  the  issue  intended 
to  be  raised,  whether  of  denial  or  avoidance;2  and  the  plaintiff 
will  be  precluded  from  giving  any  matter  in  evidence  to  avoid  the 
statute,  not  specially  embraced  in  his  plea.  Thus,  under  a  repli- 
cation that  the  defendant  did  assume  and  promise  within  six 
years,  it  has  been  held  that  the  plaintiff  could  not  show  that  the 
defendant  had  promised  not  to  plead  the  statute.3  So  a  defend- 
ant's answer,  which  fails  to  allege  that  the  cause  of  action  did 
not  accrue  within  the  prescribed  period  before  the  commence- 
ment of  the  action,  but  alleges  that  he  did  not  at  any  time  within 
the  prescribed  period  before  the  commencement  of  the  action 
undertake,  promise,  or  agree,  etc.,  is  insufficient  to  interpose  the 
bar  of  the  statute.4  (a)     The  same  is  true  as  to  fraud,   absence 

statute  of  limitations  of  another  State  is  a  bar  to  an  action  upon  the  claim  in 
that  State.  Davis  v.  Harper,  4S  Iowa,  5x3.  In  Gans  v.  Frank,  36  Baib.  (N.  Y.) 
320,  a  doctrine  similar  to  thai  held  in  Mississippi  was  held. 

1  Crosby  v.  Stone,  2  N.  J.  L.  988;  Van  Dike  v.  Van  Dike,  4  N.  J.  Eq.  289; 
Jarvis  v.  Pike,  11  Abb.  Pr.  (N.  Y.),  N.  S.,  39S;  Ford  v.  Babcock,  2  Sandf.  (N.  Y. 
S.  C.)  518;  Witherup  v.  Hill,  9  S.  &  R.  (Penn.)  11;  Webster  v.  Newbold,  41 
Penn.  St.  4S2;  McKelvy's  Appeal,  72  id.  409.  In  Jex  v.  Mayor  of  N.  Y.,  111  N. 
V.  339,  it  was  held  that  the  six  years'  statute  of  limitation  applies  to  a  cause  of 
action  to  recover  back  the  amount  of  an  assessment  for  a  local  improvement 
paid  to  the  city  of  New  York,  where  the  assessment  was  void  for  want  of  juris- 
diction; and  it  is  wholly  unnecessary  in  such  a  case  to  set  aside  the  assessment, 
the  cause  of  action  being  one  of  a  legal  nature  only.  In  pleading  the  statute, 
it  is  sufficient  to  aver  that  more  than  six  years  have  elapsed  since  the  cause  of 
action  accrued;  it  is  not  necessary  to  aver  that,  in  addition  to  the  six  years,  the 
thirty  days  allowed  the  city  by  its  charter,  to  pay  the  claim  after  presentation 
and  duting  which  time  the  claimant  is  prohibited  from  bring  suit,  has  also 
elapsed.      Diefenthaler  v.  Mayor,  etc.,  in  N.  Y.  331. 

9  Jarvis  v.  Pike,  supra.  The  plea  must  be  interposed  before  issue  is  joined, 
even  when  a  matter  is  referred.  Hut  as  to  matters  brought  up  by  the  plaintiff, 
of  which  the  defendant  first  had  notice  on  the  trial  before  a  referee  or  auditor, 
the  plea  may  be  interposed,  either  orally  or  in  writing,  by  leave  of  the  referee 
or  auditor.  When  a  defendant  sets  up  a  counter-claim,  the  plaintiff  must  plead 
the  statute  thereto,  and  cannot  for  the  first  time  set  it  up  before  the  referee, 
who  has  no  power  to  authorize  the  filing  of  such  a  plea.  Ripley  v.  Corwin,  17 
Hun  (N.  Y.)  59-. 

McCulloch  v.  Norris,  5  Penn.  St.  285. 

*McCollisier  v.  Willey,  52  Ind.  382. 

(a)  In  Massachusetts  it  is  held  that  ute  of  limitations,  the  burden  of  proof 
"  on  a  question  arising  under  the  stat-     is   on   the  plaintiff."     Currier  v.  Stud- 


§7-' 


MUST    BE    PLEADED. 


21 


from  the  State,  or  indeed  any  matter  that  goes  in  avoidance  of 
the  statutory  bar.1  When  a  right  is  not  of  common-law  origin, 
but  is  given  by  a  statute  which  prescribes  the  time  within  which 
the  right  must  be  enforced,  a  complaint  which  on  its  face  shows 
that  the  time  limited  has  expired  will  be  insufficient  on  demurrer.2 
But,  where  the  statute  merely  bars  the  remedy  upon  a  right 
which  exists  at  the  common  law,  the  statute  must  be  pleaded.3 

In  some  of  the  States  it  is  held,  that  when  the  complaint  on  its 
face  shows  that  the  statute  has  run,  it  may  be  availed  of  by 
demurrer.4  (a)  In  Iowa,  it  was  held,  that  the  defense  of  the  stat- 
ute cannot  be  raised  by  demurrer.5     In  Alabama  it  is  held  that 

1  Bevan  v.  Cullen,  7  Penn.  St.  281;  King  v.  Baxter,  7  Phila.  (Penn.)  186.  See 
post,  Pleadings. 

5  Leard  v.  Leard,  30  lnd.  171. 

8  Cook  v.  Chambers,  107  lnd.  67. 

4  Wilt  v.  Buchtel,  2  Wash.  Ter.  417;  Thompson  v.  Parker,  68  Ala.  387;  Devor 
v.  Rerick,  87  lnd.  337;  Budd  v.  Walker,  29  Hun  (N.  Y.)  344;  Ilett  v.  Collins, 
103  111.  74;  Upton  v.  Steele,  2  Wy.  54;  Upton  v.  Mason,  id.  55;  St.  Louis,  etc., 
R.  R.  Co.  v.  Brown,  49  Ark.  253. 

6  State  v.  Mclntyre,  58  Iowa,  72.     See  also  State  v.  Spencer,  70  Mo.  314. 


ley,  159  Mass.  r7,  20,  and  see  Slocum 
71.  Riley,  145  Mass.  370.  This  is  true 
in  some  instances,  but  is  perhaps  too 
broadly  stated,  since  there  are  cases, 
where  the  defendant,  being  required  to 
plead  this  statute,  as  he  is  also  to  plead 
the  statute  of  frauds,  the  burden  is 
upon  him  on  the  issue  he  thus  raises 
specially;  though,  by  using  the  allega- 
tions of  the  plaintiff's  declaration  or 
complaint  as  admissions,  he  may  be 
able  to  shift  the  burden  from  himself 
to  the  plaintiff  to  establish  an  exception 
to  the  operation  of  the  statute.  See 
this  question  discussed  in  the  note  to 
Pond  v.  Gibson,  (5  Allen  [Mass.]  19), 
81  Am.  Dec.  724;  Goodell  v.  Gibbons, 
91  Va.  608;  2  Greenl.  Ev.  (16th  ed.), 
£430,  note;  Browne  on  the  Statute  of 
Frauds  (5th  ed.),  §  535;.  Gupton  v. 
Hawkins,  126  N.  C.  81;  McConnico  v. 
Thompson,  19  Tex.  Civ.  App.  539; 
Mclntyre  v.  Ajax  Mining  Co.,  20  Utah, 
323.  The  true  rule  appears  to  be  that 
adopted  in  Indiana,  viz.:  "  The  statute 
of  limitations  is  a  defense,  and  it  is  not 
necessary  to  anticipate  an  attempt  to 
avoid  such  defense  in  the  complaint. 
When  any  statute  of  limitations  is 
pleaded  as  a  defense,  if  the  facts  bring 
the  case  within  any  of  the  exceptions 
to  the  statute,  they   may  be  set  up  in 


reply.     This  is   the   proper  practice." 
State  v.  Parsons,  147  lnd.  579.  583. 

(a)  See  Dawkins  v.  Penryhn,  \  App. 
Cas.  51;  Noyes  v,  Crawley,  10  Ch.  D. 
31 ;  Sawyer  v.  Boston,  144  Mass.  470; 
Fogg  v.  Price,  145  Mass.  513;  French 
v.  Dickey,  3  Tenn.  Ch.  302;  Gilbert  v. 
Hewetson,  79  Minn.  326;  Hunt  v. 
Jetmore,  9  Kan.  App.  333;  Fullerton 
v.  Bailey,  17  Utah,  85.  Under  the 
Code  procedure,  the  demurrer  is 
sufficient  in  form  if  it  specifies  the 
statute  of  limitations  as  one  of  the 
grounds  of  demurrer.  But  "  a  de- 
murrer upon  this  ground  can  be  sus- 
tained only  when  it  affirmatively  ap- 
pears from  the  complaint  that  the 
plaintiff's  cause  of  action  is  barred. 
The  defendant  cannot,  in  support  of 
the  demurrer,  invoke  other  facts  which 
might  be  introduced  in  his  defense." 
Williams  v.  Bergin,  116  Cal.  56,  59. 
This  defense  may  also  be  raised  by 
answer.  Meisenheimer  v.  Kellogg, 
106  Wis.  30.  In  Michigan,  the  defense 
of  limitation  toan  action  at  law  cannot 
be  raised  by  demurrer.  Renackowsky 
v.  Water  Com'rs,  122  Mich.  613.  This 
defense  may  there  be  availed  of  by 
answer  in  equity.  Potter  v.  Martin, 
122  Mich.  542. 


22  STATUTES   OF    LIMITATION.  [CHAP.  I. 

when  the  bill  or  complaint  seeks  to  enforce  a  claim  which  on  its 
face  is  barred  by  the  statute  of  limitations,  but  avers  partial  pay- 
ments which  avoid  the  bar,  the  defense  of  the  statute  cannot  be 
taken  by  demurrer.1  There  would  seem  to  be  no  good  reason 
why  this  rule  should  not  be  universal;  but  if  no  demurrer  is  filed, 
and  no  plea  setting  up  the  statute,  it  cannot  be  availed  of  as  a 
defense,2  as  only  those  pleading  the  statute  can  avail  themselves 
of  it  in  defense.3  In  Georgia  it  is  held  that  where,  upon  the  face 
of  the  declaration,  the  suit  is  barred  by  the  statute,  it  will  be  dis- 
missed on  motion.  As  the  statute  is  a  purely  personal  privilege, 
it  follows,  as  a  matter  of  course,  that  no  one  can  avail  themselves 
of  that  privilege  except  the  person  who  elects  so  to  do  by  setting 
up  the  statute  as  a  defense;  and  the  court  cannot  of  its  own 
motion  interpose  a  plea  of  the  statute.4  The  rule  that  the  statute 
must  be  pleaded  applies  only  where  there  is  an  opportunity  to 
plead  it.5  And  the  court  may,  in  its  discretion,  allow  an  amend- 
ment setting  up  the  statute  as  a  defense,6  but  as  there  is  serious 
danger  that  such  discretion  may  be  abused,  the  courts  will  only 
exercise  it  in  extreme  cases.7 

In  the  case  last  cited,  it  was  held  that  where  a  person  pleads 
the  statute  by  way  of  defense,  he  must  be  presumed  to  intend  to 
plead  the  statute  applicable  to  his  case.  But  in  a  case  cited  from 
Mississippi,8  it  was  held  that  when  a  defendant  relies  on  a  statute 

1  Cameron  v.  Cameron,  82  Ala.  392;  Manning  v.  Dallas,  73  Cal.  420;  Walker 
v.  Flemming,  37  Kan.  171;   Heffernan  v.  Howell,  90  Mo.  344. 

*  Bannon  v.  Lloyd,  64  Md.  48;  Cotherman  v.  Cotherman,  58  Mich.  465;  Ward 
v.  Walkers,  63  Wis.  39;  Cooksey  v.  R.  Co.,  17  Mo.  App.  132;  Childress  v.  Grim, 
57  Tex.  56;  Belleville  Savings  Bank  v.  Winslow,  30  Fed.  Rep.  488;  Sanger  v. 
Nightingale,  122  U.  S.  176. 

3  Bannon  v.  Lloyd,  supra;  Bridgforth  v.  Payne,  62  Miss.  777.  In  this  case  it 
was  also  held  that  a  defendant,  having  relied  on  the  statute  not  applicable  can- 
not have  the  benefit  of  one  not  pleaded. 

4  Smith  v.  Hutchinson,  78  Va.  683;  Sanger  v.  Nightingale,  122  U.  S.  176.  In 
Lwell  v.  Daggs,  10S  U.  S.  143,  the  court  said  that,  although  a  subsequent  pur- 
chaser might  set  up  a  plea  of  the  statute,  the  plea  must  show  that  the  action  is 
barred  as  between  the  parties  to  the  debt,  because  the  owner  of  the  equity  of 
redemption  has  that  debt  to  pay.  The  statute  does  not  discharge  the  debt,  but 
only  defeats  a  remedy  for  the  enforcement  of  the  claim.  Harris  v.  Gray,  49 
Ga.  585;  Parker  v.  Erwin,  47  Ga.  2;  Baker  v.  Bush,  25  Ga.  594;  George  v.  Gard- 
ner, 4,q  Ga.  441. 

Dreutzer  v.  Baker,  60  Wis.  179. 
'Smith  v.  Dagert,  61    Wis.  222. 
'Morgan  v.  Bishop,  61   Wis  407. 
■  Bridgforth  v.  Payne,  62  Miss.  777. 


§  8.]  PART   OF   LEX    FORI.  .  23 

not  applicable,  he   cannot  have  the  benefit  of  one  not  pleaded 
which  might  be  applicable. 

SEC.  8.  The  Law  of  Limitations  a  Part  of  the  Lex  Fori.  —  It  is 
well  settled  that  personal  contracts  are  to  be  interpreted  by  the 
law  of  the  place  where  they  are  made;  and  it  is  a  rule  equally 
well  settled  that  remedies  on  contracts  are  to  be  regulated  and 
pursued  according  to  the  law  of  the  place  where  the  action  is 
instituted,  and  not  by  the  law  of  the  place  of  the  contract.  The 
reason  of  this  rule,  according  to  Story,  J.,1  is  obvious,  and  it  is 

1  In  Le  Roy  v.  Crowningshield,  2  Mason  (U.  S.)  151.  "  Courts  of  law,"  says 
he,  "  are  instituted  by  every  nation  for  its  own  convenience  and  benefit,  and 
the  nature  of  the  remedies,  and  the  time  and  manner  of  the  proceedings,  are 
regulated  by  its  own  views  of  justice  and  propriety,  and  fashioned  by  its  own 
wants  and  customs.  It  is  not  obliged  to  depart  from  its  own  notions  of  judicial 
order  from  mere  comity  to  any  foreign  nation.  Asa  rule,  statutes  of  limitation 
are  to  be  considered  to  fall  within  these  remarks.  They  go  ad  litis  ordina- 
tionem,  not  ad  litis  decisionem.  In  cases,  therefore  (except  where  provision  is 
otherwise  made  by  statute),  where  an  action  is  brought  in  one  country  or 
State  upon  a  contracl  made  in  another,  a  plea  of  the  statute  of  limitations 
existing  in  the  place  of  contracts  is  not  a  good  bar,  but  a  plea  of  the 
statute  existing  in  the  country  or  State  where  the  action  is  brought,  is." 
In  Dupleix  v.  De  Roven,  2  Vern.  540,  is  to  be  found  the  first  authority  that 
statutes  of  limitation  go  ad  litis  ordinationem  and  not  ad  litis  decisionem.  That 
case  was  a  bill  in  equity  for  discovery  of  assets  and  satisfaction  of  the  plain- 
tiff's debt,  which  was  a  judgment  obtained  in  France.  The  defendant  set  up 
the  English  statute  of  limitations  in  tar  of  the  claim,  which  was  allowed  by  the 
Lord  Keeper,  and  this  decree  was  confirmed  on  a  rehearing.  The  question  was 
made  at  law,  and  Lord  Ellenborough  said:  "  It  is  said  that  parties  who  have 
•contracted  abroad  return  to  this  country  with  the  same  rights  which  they  had  in 
the  country  where  they  so  contracted;  and,  generally  speaking,  that  is  so, — 
that  is,  if  the  rights  of  the  contracting  parties  be  extinguished  by  the  foreign 
law,  by  the  happening  of  certain  events.  But  here  there  is  only  an  extinction 
of  the  remedy  in  the  foreign  court,  according  to  the  law  stated  to  be  received 
there,  but  no  extinction  of  the  right;  and  there  is  no  law  or  authority  that  where 
there  is  an  extinction  of  the  remedy  only  in  the  foreign  court,  that  shall  operate, 
by  comity,  as  an  extinction  of  the  remedy  here  also.  If  it  goes  to  the  extinction 
of  the  right  itself,  the  case  may  be  different."  See  Campbell  v.  Stein,  8  Dow, 
116.  The  uniform  rule  has  been  that  the  lex  loci  contractus  expounds  the  obliga- 
tions of  contracts,  and  a  statute  of  limitations  prescribing  a  time  after  which  a 
plaintiff  shall  not  recover,  unless  he  can  bring  himself  within  its  exceptions, 
appertains  ad  tempus  et  modum  actionis  ittstitudendce,  and  not  ad  valorem  con- 
tractus. Townsend  v.  Jameson,  g  How.  (U.  S.)407;  United  States  z\  Donelly, 
8  Pet.  (U.  S.)  361.  In  Dash  v.  Tupper,  1  Caines  (N.  Y.)  402,  an  action  upon  a 
note,  the  statute  of  limitations  of  New  York  was  pleaded,  and  the  plaintiff 
replied  that  the  note  was  made  in  Connecticut,  where  the  statute  was  seven- 
teen  years,  whereas  in   New  York   it  was  only  six  years.     The  court  held  this 


24  STATUTES   OF    LIMITATION.  [CHAP.   I. 

in  conformity  with  the  universal  rule  that,  as  the  statute  operates 
merely  upon  the  remedy,  the  law  of  the  forum  and  not  the  law 
of    the    situs    of    the    contract,    controls.1      But,    if    the    statute 

replication  bad  on  demurrer.  In  Scotland  it  has  been  held  that,  as  to  process 
brought  there  to  recover  an  English  debt,  the  statute  of  prescription  in  England 
cannot  be  pleaded,  but  that  it  may  be  pleaded  to  infer  a  presumption  of  pay- 
ment; and  ihe  plaintiff  will  be  permitted  by  positive  evidence  to  overcome  this 
presumption  by  contrary  presumptions,  or  to  show  from  ihe  circumstances  of 
the  case  that  payment  cannot  be  presumed.  Kame's  Principles  of  Equity,  c.  S, 
p.  369.  This  doctrine  does  not  prevail  in  this  country.  Wayne,  J.,  in  Town- 
send  v.  Jameson,  9  How.  (U.  S.)  407,  in  a  very  able  and  exhaustive  opinion, 
says:  "  Most  of  the  civilians,  however,  did  not  lose  sight  of  the  difference 
between  these  prescriptions,  and  if  their  reasons  for  doing  so  had  been  taken  as 
a  guide,  instead  of  some  expressions  used  by  them  as  to  what  may  be  pre- 
sumed as  to  the  extinction  or  payment  of  a  claim,  while  the  plea  in  bar  is  pend- 
ing, we  do  not  think  that  any  doubt  would  have  been  expressed  concerning  the 
correctness  of  their  other  conclusion,  that  statutes  of  limitations  in  suits  upon 
contracts  only  relate  to  the  remedy.  But  that  was  not  done;  and  from  some 
expressions  of  Pothier  and  Lord  Karnes,  it  was  said,  '  If  the  statute  of  limita- 
tions does  create,  proprio  vigore,  a  presumption  of  the  extinction  or  payment  of 
the  debt,  which  all  nations  ought  to  regard,  it  is  not  easy  to  see  why  the  pre- 
sumption  of  such  payment,  thus  arising  from  the  lex  loci  contractus,  should  not 
be  as  conclusive  to  every  other  place  as  in  the  place  of  the  contract.'  *  *  * 
But  neither  Pothier  nor  Lord  Karnes  meant  to  be  understood  that  the  theory  of 
statutes  of  limitations  purported  to  afford  positive  presumptions  of  payment 
and  extinction  of  contracts,  according  to  the  laws  of  the  place  where  they  are 
made,"  but  only  that  the  presumption  is  in  favor  of  the  party  pleading  the 
statute."  Bigelow  &  Ames,  18  Minn.  537.  In  Miller  v.  Brenhaur,  7  Hun  (N. 
Y-)  33°>  m  an  action  upon  a  foreign  judgment,  it  was  held  that  the  statute  of  the 
State  in  which  the  judgment  was  rendered  could  not  be  set  up  to  defeat  the 
action  in  New  York,  as  the  statute  is  local.  Hubbell  v.  Coudrey,  5  Johns. 
(N.  Y.)  132;  Bissell  v.  Hall,  11  id.  168;  Ruggles  v.  Keeler,  3  id.  264;  Carpenter 
v.  Wells,  21  Barb.  (N.  Y.)  593;  Power  v.  Hathaway,  43  id.  214;  Toulandou  v. 
Lachenmeyer,  37  How.  Pr.  (N.  Y.)  145. 

1  McCluny  v.  Silliman,  3  Pet.  (U.  S.)  270;  Townsend  v.  Jennison,  9  How.  (U.  S.) 
407;  Thibodeau  v.  Levassuer,  36  Me.  362;  Le  Roy  v.  Crowningshield,  2  Mason 
(U.  S.)  151;  Jones  v.  Hays,  4  McLean  (U.  S.)52i;  M'Elmoyle  v.  Cohen,  13  Pet.  (U. 
S.)3i2;  Nicolls  v.  Rodgers,  2  Paine(U.  S.)437;  Egberts  v.  Dibble,  3  McLean(U.  S.) 
86;  Miller  v.  Brenham,  68  N.  Y.  83;  Mayer  v.  Friedman,  7  Hun  (N.  Y.)  218.  In 
Loveland  v.  Davidson,  3  Penn.  L.  J.  Rep.  377,  where,  in  an  action  on  a  judg- 
ment obtained  before  a  justice  of  the  peace  in  New  York,  the  defendant  set 
up  the  New  York  statute  of  limitations  in  defense,  the  court  held  that  the  plea 
was  bad,  and  that  the  lex  fori,  and  not  the  lex  contractus,  governed.  See 
Murray  v.  Fisher,  5  Lans.  (N.  Y.)  98.  Even  in  those  States  where  by  statute 
the  statute  of  another  State  may  be  set  up  to  bar  the  action,  the  right  to  rely  on 
the  defense  must  be  affirmatively  shown  by  the  answer.  Gillett  v.  Hill,  33 
Iowa,  220.  This  question  was  raised  in  Miller  v.  Brenham,  7  Hun  (N.  Y.)  330, 
where  an  action  was  brought  against   the   defendant  upon  a  judgment  obtained 


§  8.]  PART    OF    LEX    FORI.  2$ 

extinguishes  the  right  itself,  it  may  be  set  up  as  a  bar  to  an 
action  thereon  wherever  brought.1  This  rule  is  forcibly  illus- 
trated in  another  way,  and  that  is,  that  where  by  the  laws  of  the 
forum  a  shorter  period  for  the  limitation  of  a  claim  is  fixed  than 
by  the  law  of  the  situs  of  the  contract,  the  statute  of  the /or um 
will  bar  the  claim  if  the  party  setting  it  up  brings  himself  within 
it,  although  the  statute  of  the  place  of  contract  has  not  run. 
Thus,  in  Massachusetts,  a  witnessed  note  is  not  barred  until  the 
lapse  of  twenty  years;  but  in  New  York  no  distinction  is  made 
between  a  witnessed  note  and  any  other;  and  in  an  action  in  the 

against  him  in  California,  and  it  was  contended  that  the  action  was  too  late, 
because  by  the  statute  of  California  an  action  upon  any  judgment  of  the  courts 
of  the  United  States,  or  of  any  State  and  territory,  though  the  judgment  was 
not  discharged  or  extinguished,  was  barred  as  to  the  remedy,  unless  commenced 
within  five  years  from  its  rendition,  whereas  nearly  eight  years  had  elapsed 
since  the  judgment  in  action  was  obtained.  The  court,  in  denying  this  defense, 
said:  "  The  statute  did  not  affect  the  temedy  in  any  other  respect,  and  conse- 
quently it  cannot  be  allowed  to  control  the  proceedings  in  this  State,  brought 
for  the  collection  of  the  judgment.  The  effect  of  statutes  relating  alone  to  the 
remedy  is  necessarily  local,  and  this  is  a  provision  of  that  description.  In  this 
State  an  action  upon  the  judgment  could  only  be  barred  by  showing  that  the 
defendant  had  resided  here  for  the  length  of  time  required  for  that  purpose  by 
the  terms  of  our  statute."  Hendricks  v.  Comstock,  \i  Ind.  238;  Watson  v. 
Brewster,  1  Penn.  St.  381;  Paine  •.:'.  Drew,  44  N.  H.  306;  Hubbell  v.  Coudrey, 
5  Johns.  (N.  Y.)  132;  Bissell  v.  Hall,  11  id.  168;  Ruggles  v.  Keeler,  3  id.  264; 
Carpenter  v.  Wells,  21  Barb.  (N.  Y.)  593;  Power  v.  Hathaway,  43  id.  214; 
Toulandou   v.    Lachenmeyer,    37    How.    Pr.    (N.  Y.)  145.     In    Putnam  v.  Dike, 

13  Gray  (Mass.)  535,  the  court  held  that,  although  the  debt  arose  forty  yeais 
before  action  was  brought  thereon,  it  was  not  barred  without  proof  that  the 
defendant  has  ever  been  in  the  State;  and  in  Lawrence  v.  Bassett,  5  Allen 
(Mass.)  140,  it  was  held  that  a  note  is  not  barred  by  the  statute  although  over- 
due for  more  than  six  years,  although  the  maker  was  once  a  resident  of  the 
State,  but  has  lived  oui  of  it  ever  since  the  action  accrued.     Walworth  v.  Routh, 

14  La.  Ann.  205;  Gassaway  v.  Hopkins,  1  Head  (Tenn.)  583;  Putnam  v.  Dike, 
13  Gray  (Mass.)  535;  Bulger  v.  Roche,  ir  Pick.  (Mass.)  36;  Flowers  v.  Fore- 
man, 23  How.  (U.  S.)  132;  Carson  v.  Hunter,  46  Mo.  467;  Stage  Wagon  Co.  v. 
Mathieson,  3  Dak.  233. 

1  Gans  v.  Frank,  36  Barb.  (N.  Y.)  320;  Perkins  v.  Guy,  55  Miss.  153.  The  rule 
may  be  said  to  lead  to  these  results;  the  statute  of  the  country  in  which  suit  is 
brought  may  be  pleaded  to  bar  a  recovery  on  a  contract  made  out  of  its  juris- 
diction, but  the  statute  of  the  State  where  the  contract  was  made  cannot  be 
pleaded.  But  when  the  statute  of  the  place  where  the  contract  was  made 
operates  to  extinguish  the  contract  or  debt  itself,  and  the  contract  is  sued  upon 
in  another  State,  the  statute  of  the  lex  loci  contractus,  and  not  of  the  lex  fori, 
controls.  McMerty  v.  Morrison,  62  Mo.  140;  McArthur  v.  Goodin,  12  Bush 
(Ky.)  274;  Jones  v.  Jones,  18  Ala.  24S;  Cobb  v.  Thompson,  1  A.  K.  Mar.  (Ky.) 
507;  Harper  v.  Hampton,  1  H.  &  J.  (Md.)  622;  Fletcher  v.  Spaulding,  9  Minn.  64. 


26  STATUTES    OF    LIMITATION.  [CHAP.   I. 

latter  State  upon  a  witnessed  note  made  in  Massachusetts  and 
payable  there,  it  was  held  that  the  statute  of  New  York  ran  upon 
it  in  six  years.1 

There  is  a  distinction  as  suggested  in  Story's  Conflict  of  Laws, 
and  as  suggested  in  reference  to  the  preceding  rule,  in  cases  where 
the  right  as  well  as  the  remedy  of  the  claimant  is  barred  by  the 
law  existing  at  the  place  of  contract.2  This,  however,  is  not  per- 
haps a  frequent  case  in  regard  to  personal  actions.  In  all  cases 
touching  realty  the  lex  rci  sitce  prevails.3 

Story,  J.,  in  a  case  previously  cited,4  inclined  to  the  view  that, 
where  the  statute  of  the  loci  contractus  barred  all  remedy  upon  the 
claim,  "there  is  a  virtual  extinction  of  the  right  in  that  place, 
which  ought  to  be  recognized  in  every  other  tribunal  as  of  equal 
validity;  "  although  the  decision  in  the  case  was  adverse  to  this 
view.  At  a  later  period  when  he  wrote  his  work  on  The  Conflict 
of  Laws,  it  is  evident  that  he  had  changed  his  views  in  this 
respect.  He  says:  "  It  may  be  stated  that,  as  the  law  of  pre- 
scription of  a  particular  country,  even  in  case  of  a  contract  made 
in  such  country,  forms  no  part  of  the  contract  itself,  but  merely 
acts  upon  it  ex  post  facto,  in  case  of  a  suit,  it  cannot  properly  be 
deemed  a  right  stipulated  for  or  included  in  the  contract,  "s 
Shaw,  C.  J.,  in  a  Massachusetts  case,6  treated  the  rule  as  well 
settled  as  stated  in  the  text,  but  intimated  that,  if  it  was  an  open 
question,  it  might  be  attended  with  some  difficulty.  In  a  later 
case,  it  was  held  that  an  action  for  breach  of  promise  of  marriage 
brought  by  a  foreigner  within  six  years  after  coming  to  this 
country  was   not   barred,  although  the  promise  was  made  more 

1  Nicnlls  v.  Rodgers,  2  Paine  (U.  S.)  437. 

2  Carpenter  v.  Minturn,  6  Lans.  (N.  Y.)  56;  Gans  v.  Frank,  36  Barb.  (N.  Y.) 
320;  Perkins  v.  Guy.  55  Miss.  155.  In  McMerty  v.  Morrison,  62  Mo.  140,  the 
court  says:  "  The  statute  of  limitations  of  the  country  in  which  suit  is  brought 
may  be  pleaded  to  bar  a  recovery  on  a  coniract  made  out  of  its  political  juris- 
diction, and  the  statute  of  the  place  where  the  contract  was  made  cannot  be 
pleaded.  But  where  the  statute  cf  limitations  where  the  contract  is  made 
operates  to  extinguish  the  contract  or  debt  itself,  and  the  contract  is  sued  upon 
in  another  State,  the  lex  lot  i  contractus  and  not  the  lex  fori,  is  to  govern."  Fears 
v.  Sykes,  35  Miss.  633.  When  a  right  of  action  has  expired  by  limitation  of  the 
statute  of  another  Slate  by  which  alone  the  right  is  created,  no  action  can  be 
maintained  thereon  in  another  State.      Ilalsey  v.  McLean,  12  Allen  (Mass.).  439. 

3  Pitt  v.  Lord  Dacre,  3  Ch.  I).  2()$;  Story,  Conflict  of  Laws,  581. 
*  Le  Roy  v.  Crowningshield,  2  Mason  (U.  S.  C.  C.)  151. 

1  Story  on  Conflict  of  Laws,  583. 

'  Bulger  v.  Roche,  11  Pick.  (Mass.)  36. 


§8.]  PART   OF    LEX    FORI.  2J 

than  twenty  years  previously  in  her  native  country.1  In  some  of 
the  States  provision  is  made  by  statute  that,  in  certain  cases,  and 
subject  to  certain  conditions,  the  statute  of  another  State,  where 
the  defendant  has  resided  for  the  requisite  period  to  bar  the 
claim,  may  be  interposed  as  a  bar  in  the  State  where  action  is 
brought.  This  is  the  case  in  Massachusetts,  Nebraska,  Nevada, 
Kansas,  Oregon,  Iowa,  Texas,  Florida,  and  Ohio.2  In  Wisconsin 
it  is  held  that  when  both  parties  reside  therein  until  a  debt  is 
barred  or  a  title  made,  the  right  is  extinguished  so  that  it  would 
be  a  defense  in  another  State.3  Under  these  saving  statutes, 
where  a  right  is  completely  barred  under  the  statutes  of  another 
State  or  country,  it  forms  a  valid  defense  in  the  State  in  the  statute 
of  which  such  saving  clause  exists.4  (a)     But,    in  order  to  avail 

1  Goetz  v.  Voelinger,  99  Mass.  504.  But  now  the  rule  is  otherwise  by  statute 
of  1880,  c.  98,  and  Stat.  1882,  p.  1115.  In  Atwater  v.  Townsend,  4  Conn.  47,  it 
was  held  that  neither  the  statute  of  limitations  nor  a  discharge  under  the 
insolvent  laws  of  the  lex  loci  contractus  can  be  set  up  to  bar  a  remedy.  See 
Smith  v.  Spinolla,  2  Johns.  (N.  Y.)  196;  Sicard  v.  Whale,  11  id.  194;  Whitte- 
more  v.  Adams,  2  Cow.  (N.  Y.)  626;  Sherrill  v.  Hopkins,  1  id.  103;  Beckwith  v. 
Angell,  6  Conn.  315;  VVoodbridge  v.  Wright,  3  id.  523;  Smith  v.  Healy,  4  id.  49. 
The  last  two  cases  relate  to  a  discharge  under  insolvent  laws. 

8  Nebraska  Code,  §  560S;  Nevada  Comp.  Laws  (1900),  §  3736;  1  Indiana  Rev. 
Stats.  (1894),  §  29S;  Kansas  Gen.  Stats.  (1899),  §  4266;  Oregon  Code,  c.  1,  tit.  2, 
§  26;.  Iowa  Code,  §  3452;  Mass.  Pub.  Stat.,  c.  197,  §  11;  Texas  Rev.  Stats. 
(1895),  §  3359;   Florida  Rev.  Stats.  (1892),  §  1295;  Ohio  Rev.  Stats.,  §  4990. 

3  Brown  v.  Parker,  28  Wis.  21;   Knox  v.  Cleveland,  13  id.  245. 

4  State  v  Ladd,  1  Biss.  (U.  S.  C.  C.)69;  Harris  v.  Harris,  38  Ind.  423;  Van 
Dorn  v.  Bodley,  id.  402;   Hoggett  v,  Emerson,  8  Kan.  262.     In  Nebraska,  when 

(a)  These  provisions  do  not  applv  to  provisions,  Minneapolis  Harvester  Co. 
penal  statutes,  which  are  always  local  v.  Smith,  36  Neb.  6t6;  Webster  v. 
in  their  application.  State  v.  John,  5  Davies,  44  id.  301;  Mechanics'  Build- 
Ohio,  217.  Under  the  Ohio  statute  ing  Assoc,  v.  Whitacre,  92  Ind.  547, 
which  provides  that  "  if,  by  the  laws  555;  Wright  v.  Strauss,  73  Ala.  227; 
of  the  State  or  country  where  the  cause  Bulger  v.  Roche  (11  Pick.  36),  25  Am. 
of   action   arose,  the  action  is  barred,  Dec.  359,  and  note. 

it  is  also  barred  in  this  State,"  it  is  In  Kansas,  where  the  statute,  after 
held  that  such  foreign  statute,  when  providing  in  substance  like  the  above- 
pleaded  with  issue  joined  thereon,  quoted  Ohio  statute,  proceeded  thus: 
must  be  proved  as  a  fact,  but  that,  on  "And  no  action  ^hall  be  maintained  in 
error  or  appeal,  evidence  to  prove  it  this  State  on  any  judgment  or  decree 
will  be  presumed  to  have  been  offered  rendered  in  another  State  or  country 
when  the  record  is  silent.  Whelan  v.  against  a  resident  of  this  State,  where 
Kinsley,  26  Ohio  St.  131.  In  Iowa,  the  cause  of  action  upon  which  said 
where  such  a  provision  does  not  apply  judgment  or  decree  was  rendered 
"  to  causes  of  action  arising  within  this  could  not  have  been  maintained  in  this 
State,"  it  does  not  include  an  action  to  State  at  the  time  the  action  thereon 
recover  taxes  paid  by  mistake  on  was  commenced  in  such  other  State  or 
another's  land  in  the  State,  and  to  en-  country,  by  reason  of  lapse  of  time," 
force  a  lien  thereon.  Bradley  v.  Cole,  this  quoted  clause  was  early  held  un- 
67    Iowa,   650.      See    further,   on   such  constitutional,  as  not  giving  full  faith 


28  STATUTES   OF    LIMITATION.  [CHAP.   I. 

himself  of  that  defense,  it  must  be  affirmatively  stated  in  the  plea 
or  answer,  and  must  be  fully  established  by  the  defendant  by 
proof,  showing  that  the  statute  of  the  State  relied  on  has  fully 
run  upon  the  claim,  and  that  the  conditions  required  to  make 
such  statute  a  bar  existed.  Independently  of  any  such  statutory 
provision,  the  rule  is  well  settled,  that  when  the  citizen  of  one 
State  seeks  a  remedy  upon  a  contract  or  claim  in  the  forum  of 
another  State,  he  thereby  impliedly  submits  to  all  the  laws  of 
such  State  relating  to  the  remedy,  and  has  no  cause  of  compalint 
if  those  laws  deprive  him  of  advantages  that  he  might  have  had 
under  the  laws  of  his  own  State.1     It  is  a  rule  of  law,  universally 

a  cause  of  action  is  fully  barred  by  the  law  of  another  State  where  the  defend- 
ant had  previously  resided,  it  also  is  a  bar  there.  In  Nevada,  where  a  cause  of 
action  arose  in  another  State  or  country,  and  by  the  law  thereof  an  action  cannot 
be  maintained  upon  it  there,  no  action  lies  thereon  in  Nevada.  A  similar  pro- 
vision exists  in  the  statute  of  Kansas.  In  Ohio  and  Oregon,  when  the  cause  of 
action  arose  out  of  the  State,  and  between  non-residents,  and  by  the  laws  of  the 
State  or  country  where  the  cause  of  action  arose  an  action  cannot  be  maintained 
thereon,  no  action  can  be  maintained  thereon  in  those  States.  In  Iowa,  when 
a  claim  is  barred  by  the  laws  of  any  State  or  country  where  the  defendant  has 
previously  resided,  it  is  also  barred  there.  In  Texas,  the  provision  is  similar 
to  that  in  Oregon.  In  Florida,  an  inhabitant  or  resident  of  that  State  may  set 
up  the  statute  of  the  State  where  the  contract  was  made,  in  bar. 

1  Blackburn  v.  Morton,  iS  Ark.  384.  The  statute  of  a  State  acting  upon  the 
title  to  personal  property  may  be  set  up  in  a  foreign  jurisdiction,  as  it  relates 
to  the  right  rather  than  to  the  remedy.  Fears  v.  Sykes,  35  Miss.  633.  But 
except  where  the  statute  extinguishes  the  right  of  action,  in  the  absence  of  any 
such  statutory  provision  in  the  State  where  action  is  brought,  only  the  statute 
of  such  State  can  bar  the  remedy.  Urton  v.  Hunter,  2  W.  Va.  83;  Decouche  v. 
Savetier,  3  Johns.  Ch.  (N.  Y.)  190;  Gassaway  v.  Hopkins,  1  Head  (Tenn.)  383; 
Crawford  v.  Childress,  1  Ala.  482;  King  v.  Lane,  7  Mo.  241;  Egberts  v.  Dibble, 
3  McLean  (U.  S.)  86;  Cartier  v.  Page,  8  Vl.  146;  Jones  v.  Hayes,  4  McLean 
(U.  S.)  521;  Estes  v.  Kyle,  Meigs  (Tenn.)  34;  State  v.  Swope,  7  Ind.  qi;  Pegram 
v.  Williams.  4  Rich.  (S.  C.)  21a;  Thibodeau  v.  Levasseur,  36  Me.  362;  Bissell  v. 
Hall,  11  Johns.  (N.  Y.)  168;  Woodbridge  v.  Austin,  2  Tyler  (Vt.)  364;  Wilkinson 
v.  Holloway,  7  Leigh  (Va.)  277,  Thompson  v.  Tioga,  etc.,  R.  Co.,  36  Barb. 
(N\  Y.)  79;  Paine  v.  Drew,  44  N.  H.  306;  Crocker  v.  Avery,  3  R.  I.  178;  Cobb  v. 
Thompson,  1  A.  K.  Mar.  (Ky.)  507;  Flowers  v.  Foreman,  23  How.  (U.  S.)  132; 
Harper  v.  Hammond.  1  H.  &  J.  (Md.)  622;  Richards  v.  Bickley,  13  S.  &  R. 
(Penn.)  395;  Rucjgles  v.  Keeler,  3  Johns.  (N.  Y.)  263;  Bruce  v.  Luck,  4  Greene 
(Iowa)  143;  Hawkins  v.  Barney,  5  Pet.  (U.  S.)  457;  Jones  v.  Hook,  2  Rande 
(Va.)  403;  Pearsall  v.  Dwight,  2  Mass.  84;  Ward  v.  Hallam,  1  Yeates  (Penn.) 
329;  Toulandou   v.    Lachenmeyer,   37    How.   Pr.  (N.   Y.)  145;  Levy  v.   Boas,  2 

and     credit    to     proceedings    in    other     by  Dassler).  §  4266.     See  Little  v.  Me- 
ntal* v      Dodge   7/.    Coffin,    15    Kansas,     Vey  (N.  J.  L.),  47  Atl.  61. 
277;  General  Statutes  of  Kansas  (1899, 


§  8.]  PART    OK    LEX    FORI.  29 

conceded,  that  contracts  are  to  be  construed  according  to  the  lex 
loci  contractus,  but  that  they  are  to  be  enforced  according  to  the 
lex  fori,  (a)  This  distinction  is  not  peculiar  to  the  common  law, 
but  is  found  in  other  municipal  codes  which  adopt  the  civil  law 
as  their  basis.1  We  have  already  seen  that  so  much  of  the  law 
of  a  foreign  country  as  affects  the  remedy  only,  all  that  relates 
ad  litis  ordinationon,  is  taken  from  the  lex  fori  of  that  country 
where  the  action  is  brought.  The  time  of  limitation  of  actions 
therefore  is  governed  by  the  law  of  the  country  where  the  action 
is  brought,  and  not  by  the  iex  loci  contractus.  But  where  the 
law  of  prescription  or  limitation  of  a  particular  country  not  only 
extinguishes  the  right  of  action,  but  the  claim  or  title,  or  cause 
of  action  itself,  ipso  facto,  and  declares  it  a  nullity  after  the  lapse 
of  the  prescribed  period,  such  law  of  prescription  or  limitation 
may  be  set  up  in  any  other  country  to  which  the  parties  may 
remove  as  an  absolute  bar  by  way  of  extinguishment,  provided 
the  parties  have  been  resident  within  the  foreign  jurisdiction  dur- 

Bailey  (S.  C.)  217;  Hinton  v.  Townes,  1  Hill  (S.  C.)  439;  Graves  v.  Graves,  2 
Bibb  (Ky.)  207.  In  Louisiana,  the  statute  of  another  State  may  be  set  up  to 
defeat  an  action  upon  two  conditions:  isi,  when  the  debt  accrued  between 
parlies,  both  of  whom  resided  out  of  the  State,  and  where  the  debt  was  to  be 
paid  out  of  the  State;  and,  2d,  where  the  defendant  removes  to  the  State  after 
the  statute  bar  has  become  complete.  Walworth  r/.  Roulh,  14  La.  Ann,  205. 
Sustaining  the  doctrine  of  the  text,  see  Jones  v.  Jones,  18  Ala.  248;  Medbury  v, 
Hopkins,  3  Conn,  472;  Hendricks  v.  Comstock,  12  Ind.  238;  Fletcher  v.  Spauld- 
ing,  9  Minn.  64.  And  in  those  States  where  the  statute  lets  in  the  statute  of 
another  State  to  bar  the  remedy,  it  is  necessary  that  the  statute  bar  of  such 
State  should  be  complete.  Hays  v.  Cage,  2  Tex.  501;  Smith  v.  Crosby,  id.  414. 
And  time  that  has  partly  run  in  one  State  cannot  be  lacked  to  the  time  that 
has  run  in  the  State  where  the  action  is  brought  to  complete  the  bar.  Perry  v. 
Lewis,  6  Fla.  555. 

'  Traite  de  Assurance,  c.  4.  "  Praescriptia  etexecutio,"  says  Huberus,  "  non 
pertinent  ad  valorem  contractus  sed  ad  tempus  et  modum  actionis  instituendae, 
ad  eo  que  recepta  est  optima  ratione,  ut  in  ordinandis  judicius,  loci  consuetudo 
ubi  agitur,  etsi  de  negotio  alibi  celebrato  spectetur."  Praelec.  de  Conflicti 
Legum,  vol.  ii,   Lib.  1. 

(a)  Where  the  statutes   or   decisions  court    of    that    State,    even    when    the 

of  a  particular  State  make  no  discrimi-  legislative  act  or  the  judicial  construc- 

nation   against   the    citizens,  the    con-  tion    differs    from    that    prevailing    in 

tracts  or  the  judgments  of  other  States,  other    jurisdictions.        Bauserman     v. 

or  against  any  right  asserted  under  the  Blunt,     147     U.     S.     647;     Metcalf    v. 

Federal  Constitution  or  laws,  the  limi-  Watertown,      153      id.      671;      Balkam 

tation  of  actions  is  governed  by  the  lex  v.    Woodstock    Iron    Co.,    r54  id.    177; 

loci  and  is  controlled  by  the  legislation  Great  Western  Tel.  Co.  v.  Purdy,  162 

of   the   State    in   which    the    action     is  id.  329;  Van  Santvoord  v.  Roethler,  35 

brought,  as  construed   by  the  highest  Oregon,  250. 


30  STATUTES    OF    LIMITATION.  [CHAP.    I. 

ing  the  whole  period  of  limitation,  so  that  the  law  has  actually 
operated  upon  the  case  as  an  extinguishment  of  the  claim,  and 
not  merely  as  a  limitation  of  the  remedy.  The  French  law  of 
limitaton  does  not  extinguish  or  annul  the  contract,  but  operates 
upon  the  remedy  only.1  If,  therefore,  a  party  who  has  contracted 
in  France  removes  to  this  country,  and  is  sued  here  upon  the  con- 
tract, the  action  will  be  governed  by  the  law  of  the  State  in  which 
the  action  is  brought,  and  not  by  the  French  law  of  limitation  of 
actions.2  (a) 

Sec.  9,  Distinction  where  a  Statute  gives  and  limits  the  Remedy. 
—  There  is  an  important  distinction  t6  be  obversed  in  the  applica- 
tion of  this  rule.  When  the  statute  of  a  particular  State  or 
country  gives  a  remedy  which  did  not  exist  at  common  law,  and 
at  the  same  time  limits  the  period  within  which  action  therefor 
shall  be  brought,  the  period  of  limitation  thus  named  controls  in 
whatever  jurisdiction   suit    may  be   brought.3     A  contrary   rule 

1  By  the  French  law,  all  rights  of  action  relative  to  letters  of  exchange  and 
bills  to  order,  subscribed  by  merchants,  tradesmen,  or  bankers,  or  for  matters 
of  commerce,  expire  in  five  years,  reckoning  from  the  day  of  protest  or  from 
the  last  suing  out  of  any  judicial  process,  if  there  has  been  no  judgment,  or  if 
the  debt  has  not  been  acknowledged  by  any  separate  act.  But  the  alleged 
debtors  are  held,  if  required,  to  affirm  on  oath  that  they  are  no  longer  indebted' 
and  their  widows,  heirs,  etc.,  that  '.hey  bona  fide  believe  there  is  no  longer  any- 
thing due. 

2  Huber  v.  Steiner,  2  Bing.  N.  C.  202;  British  Linen  Co.  v.  Drummond,  10  B- 
&  C.  903;  Le  Roux  v.  Brown,  12  C.  B.  801;  Ruckmaboye  v.  Mottichund,  8 
Moo.  P.  C.  4. 

3  Eastwood  v.  Kennedy,  44  Md.  563;  Baker  v.  Stonebraker,  36  Mo.  349; 
Huber  v.  Steiner,  2  Bing.  N.  C.  202;  Halsey  v.  McLean,  12  Allen  (Mass.)  439. 
In  Boyd  v.  Clark,  8  Fed.  Rep.  849,  where  an  action  was  brought  in  the  United 
States  Court  by  an  administrator  for  the  death  of  his  testator  by  the  explosion 
of  a  steamboat  boiler  in  the  Province  of  Ontario,  and,  by  a  local  statute,  a 
remedy  was  given  to  an  administrator  or  executor  of  a  person  whose  death 
was  caused  by  another's  negligence,  if  there  would  have  been  a  liability  therefor 
at  the  common  law  had  death  not  ensued;  but  this  right  of  action  existed  only 
subject  to  the  provision  that  "  everv  such  action  shall  be  commenced  within 
twelve  months  after  the  death  of  such  deceased  person,"  the  action  not  being 
brought  within   twelve  months  after  the  testator's  decease,  the  court  held  that 

[a)  A    contract   made  abroad  is  gov-  Wood.     164     U.     S.     502;     Underwood 

erncd.  as  to  the  period  of  limitation,  by  v.  Patrick,  94  Fed.  Rep.  468;  Hutchings 

the  law  of  the  country  where   the   ac-  v.  Lamson,  96  id.  720;   Wright  v.    Mor- 

ti-jii                      a.      Harris  t.  Quine,  L.  dauni,77    Miss.   537;   Home    Life    Ins. 

I'.    (,  Q    !:.'.;;   2  K ent  Com.  64th  ed),  Co.    v.    Elwell,    III      Mich.    6S9;     She- 

4^,2;    Melcalf   v.    Watertown,    153    U.  S.  waiter?'.  Hergman,  123  Ind.  155;    llol- 

(,-;i,   674;   Great    Western   Tel,   Co.   v.  ley  v.  Coffee,  123  Ala.  406;  Maddox  v. 

]        ,  .,   1 1,1    U.  S.   329,  339;   Willard    v.  Duncan,  62  Mo.  App.  474. 


§  IO.J  WHEN    NOT    PART   UK   THE    LEX    FORI.  3 1 

would  result  in  upholding  a  right  of  action  where  none  existed 
by  the  common  law,  simply  because  the  statutes  of  a  foreign 
jurisdiction  gave  a  remedy,  although  in  fact,  under  such  statute, 
the  remedy  was  lost.  In  creating  the  right,  the  legislature  has. 
the  power  to  impose  any  restrictions  it  sees  fit,  and  the  conditions 
so  imposed  qualify  the  right,  and  are  an  integral  part  thereof ;  they 
are  conditions  precedent,  so  to  speak,  that  must  be  fully  com- 
plied with,  or  the  right  does  not  exist.  Such  right  being  in  dero- 
gation of  the  common  law,  all  restrictive  language  is  construed 
against  it.1  It  seems,  also,  that  where  such  a  right  is  given  by  a 
statute,  which  imposes  a  limitation  as  to  the  time  within  which 
the  action  shall  be  brought,  and  subsequent  to  the  time  when  a 
right  accrued  thereunder  the  right  is  enlarged  or  restricted,  and 
the  limitation  clause  is  repealed,  the  right  can  only  be  enforced 
under  the  statute  as  it  stood  when  it  accrued,  and  subject  to  all 
its  conditions  and  limitations.2 

SEC.  io.  Rule  when  Title  to  Personal  Property  is  acquired  by 
Possession  under  the  Statute  of  a  State.  — When  personal  property 
is  held  adversely  in  one  State  for  a  sufficient  length  of  time  to 
acquire  a  title  thereto,  under  a  statute  existing  relative  thereto, 
the  title  so  acquired  is  to  be  recognized  in  every  other  State, 
although  the  statute  there  requires  a  longer  possession,  or,  in 
fact,  although  no  title  by  possession  can  ever  be  acquired  to  per- 
sonal property  in  such  other  State ;  and  such  seems  to  be  the 
rule.3  In  such  a  case,  lapse  of  time  not  only  bars  the  remedy, 
but  also  extinguishes  the  right  to  the  property  in  question ;  and 
in  such  cases,  as  we  have  already  seen,  the  courts  recognize  the 

while  an  action  under  such  a  statute  could  be  maintained  in  another  State  or 
country  (see  Eastwood  v.  Kennedy,  44.  Md.  563;  Huber  v.  Steiner,  2  Bing.  N. 
C.  202;  Baker  v.  Stonebraker,  36  Mo.  338,  349;  Dennick  v.  Railroad  Co.,  103  U. 
S.  11),  yet  it  could  only  be  maintained  subject  to  all  the  limitations  and  con- 
ditions imposed  by  the  statute,  and  that  the  plaintiff  must  show  that  he  has 
complied  with  all  such  conditions  and  limitations  in  every  particular,  or  his 
action  would  fail. 

1  Pittsburg,  Cin.  &  St.  Louis  Ry.  Co.  v.  Hine,  25  Ohio  St.  629. 

2  Ibid. 

3  Shelby  v.  Guy,  n  Wheat.  (U.  S.)  361;  Bracon  v.  Bracon,  5  Ala.  508;  Good- 
man v,  Munks,  8  Port.  (Ala.)  84,  130;  Fears  v.  Sykes,  35  Miss.  633;  Blackburn 
v.  Morton,  18  Ark.  384;  Cargill  v.  Harrison,  9  B.  Mon.  (Ky.)  518.  But  see 
Jones  v.  Jones,  18  Ala.  248;  Newby  v.  Blakey,  3  H.  &  M.  (Va.)  57;  Tovvnsend 
a.  Jameson,  9  How.  (U.  S.)  407.  See  also  Story's  Conflict  of  Laws,  §  582,  where 
this  exception  is  suggested. 


32  STATUTES   OF    LIMITATION  [CHAP.   I. 

statute  of  the  foreign  jurisdiction  as  controlling  the  rights  of  the 
parties.1  In  a  case  in  the  U.  S.  Supreme  Court2  this  doctrine  is 
vindicated  upon  the  ground  that  there  is  an  essential  distinction 
between  a  statute  giving  title  by  possession  and  one  simply  limit- 
ing the  remedy  as  in  the  one  case  the  right  is  extinguished,  while 
in  the  other  the  right  still  exists,  but  the  remedy  therefor  is  taken 
away.  In  a  case  in  the  same  court,3  where  the  possession  of  a 
slave  was  sought  to  be  obtained  in  an  action  of  detinue,  it  was 
held  that,  as  the  laws  of  Virginia  provided  that  five  years'  bona 
fide  possession  of  a  slave  constituted  a  good  title  thereto,  and  as 
the  vendee's  vendor  had  acquired  such  title  under  that  statute, 
he  might  set  up  such  title  in  the  courts  of  Tennessee  as  a  defense 
to  an  action  there  brought  to  recover  such  slave.4 

SEC.  ii.  Constitutionality  of  Limitation  Acts.  —  Before  pro- 
ceeding to  discuss  the  numerous  questions  arising  under  these 
statutes,  it  is  advisable  to  ascertain  how  far,  under  the  clause  of 
the  Constitution  providing  that  no  State  shall  pass  any  law 
impairing  the  obligation  of  contracts,  the  legislature  of  the 
several  States  may  impose  or  vary  limitations  affecting  contracts 
then  existing. 

It  may  be  said  that  as  the  obligation  of  a  contract  is  the  law 
that  binds  the  party  to  perform  his  undertaking,  and  consists  in 
the  power  and  efficacy  of  the  law  which  applies  to  and  enforces 
performance,  or  the  payment  of  an  equivalent  for  non-perform- 
ance, and  as  the  obligation  does  not  inhere  and  subsist  in  the  con- 
tract itself  proprio  vigore,  but  in  the  law  applicable  to  the 
contract;5  rights  acquired  and  vested  under  a  statute  cannot  be 

1  Perkins  v.  Guy,  supra;  Gans  v.  Frank  ante;  Lincoln  v.  Battelle,  6  Wend. 
(N.  Y.)  475;  Beckford  v.  Wade,  17  Ves.  87;  De  La  Vega  v.  Vianna,  1  B.  &  Ad. 
284;  Don  v.  Lipmann,  5  CI.  &  F.  1 ;  British,  etc.,  Co.  v.  Drummond,  10  B.  & 
C  903. 

'Townsend  v.  Jameson,  9  How.  (U.  S.)  407;  Brent  v.  Chapman,  5  Cranch 
(U.  S.)358. 

'Shelby  v.  Guy,  aute. 

4  See  also  to  the  same  effect  Brent  v.  Chapman,  ante;  Brown  v.  Brown,  ante; 
Newby  v.  Blakey,  ante. 

•Ogden  v.  Saunders.  12  Wheat.  (U.  S.)  318;  Lapslev  v.  Brashears,  4  Litt. 
<Ky.)  47;  Blair  v.  Williams,  id.  34;  Sohn  v.  Watterson,  17  Wall.  (U.  S.)  596.  In 
Harris  v.  Gray,  49  Ga.  585;  Davidson  v.  Lawrence,  id.  335;  Kimbro  v.  Bank  of 
Fulton,  id.  419;  George  v.  Gardner,  id.  441,  it  was  held  that  a  limitation  act 
ed  March  16,  1869,  barring  after  Jan.  1,  1870,  actions  the  right  whereof 
accrued   prior  to   June  I,  1809,  is  not  unconstitutional.      Bentwick  v.  Franklin, 


§  I  I.J  CONSTITUTIONALITY    OF.  33 

divested  by  a  repeal  or  modification  thereof.1  But,  as  statutes 
relating  merely  to  the  remedy  upon  a  contract  do  not  give 
vested  rights,  or  impair  the  obligation  of  contracts,2  the  remedy 

38  Tex.  358.  In  De  Moss  v.  Newton,  31  Ind.  219,  the  court  say:  "Where  a 
right  springs,  not  from  a  contract,  but  from  legislative  enactment,  the  action  to 
enforce  a  claim  under  such  enactment  may  be  limited  by  law;  and  the  legisla- 
ture is  the  exclusive  judge  of  the  reasonableness  of  the  time  allowed  within 
which  the  action  may  be  brought,  and  neither  the  fact  that  the  period  is  short 
or  long  is  one  which  will  enable  the  court  to  declare  the  act  void  for  unreason, 
ableness.  Adamson  v.  Davis,  47  Mo.  268.  In  Korn  v.  Browne,  64  Penn.  St. 
55,  the  section  of  the  Pennsylvania  statute  barring  a  recovery  on  ground-rents, 
unless  brought  within  twenty-one  years,  was  held  constitutional  although  retro- 
spective. A  statute  that  provides  that  it  shall  not  run  against  the  plaintiff  if 
he  resides  in  the  State,  but  shall  if  he  resides  out  of  it,  is  held  not  to  violate  the 
provisions  of  the  Federal  Constitution,  that  "  the  citizens  of  each  State  shall  be 
entitled  to  all  the  privileges  and  immunities  of  citizens  in  the  several  States." 
Chemung  Canal  Bank  v.  Lowery,  93  U.  S.  72.  And  the  same  has  been  held  as 
to  statutes  barring  judgments  obtained  in  other  States.  Meek  v.  Meek,  45 
Iowa,  294.  That  the  statute  may  provide  different  periods  of  limitations  as  to 
non-residents,  see  Hawse  v.  Burgmire,  4  Col.  313.  In  Georgia,  the  question  as 
to  whether  a  statute  of  limitations  applying  to  debts  existing  at  the  time  of  its 
passage  violated  the  provisions  of  the  State  Constitution  inhibiting  laws 
impairing  the  obligations  of  contracts  was  raised  in  several  cases,  and  the  court 
held  that  it  did  not.  That  these  statutes  simply  relate  to  the  remedy,  and  do 
not  affect  the  obligations  of  the  contract,  see  Davidson  v.  Lawrence,  49  Ga.  335; 
Harris  v.  Gray,  id.  585;  Kimbro  v.  Fulton  Bank,  id.  419;  George  v.  Gardner, 
id.  441.  This  question  was  also  raised  in  the  U.  S.  Supreme  Court,  and  was 
similarly  decided,  Sohn  v.  Waterson,  17  Wall.  (U.  S.)  596,  the  court  observing 
that  ordinarily  the  true  rule  for  applying  these  statutes  to  rights  of  action 
already  accrued  is  to  allow  to  the  party  the  statutory  time  for  suing,  computing 
it  from  the  passage  of  the  act,  and  to  consider  the  limitation  as  commencing  at 
the  lime  when  the  cause  of  action  is  first  subjected  to  the  operation  of  the  statute. 

•Southard  v.  Central  R.  Co.,  26  N.  J.  L.  13;  Benson  v.  The  Mayor,  10  Barb. 
(N.  Y.)  223;  Houston  v.  Boyle.  10  Ired.  (N.  C.)  496;  Oriental  Bank  v.  Freese,  18 
Me.  109;  Coffin  v.  Rich,  45  id.  507;  Davis  v.  O'Ferrall,  4  G.  Greene  (Iowa)  168. 
In  Gitdner  v.  Stephens,  1  Heisk.  (Tenn.)  280,  section  4  of  the  schedule  of  the 
amended  Constitution  of  1865,  and  section  4  of  the  schedule  of  the  new  Consti- 
tution of  1870,  and  the  act  of  May  30,  1865,  c.  10,  §  1,  so  far  as  their  terms  and 
effect  authorized  the  bringing  of  an  action  to  recover  on  claims  of  any  kind 
which  by  existing  laws  were  already  barred,  were  held  unconstitutional, 
because  interfering  with  vested  rights.  See  Adamson  v.  Davis,  47  Mo.  268, 
also  272  and  273.  To  the  same  effect,  see  Thompson  v.  Read,  4t  Iowa,  48; 
Pitman  v.  Bump,  5  Oregon,  17. 

3  Oriental  Bankt'.  Freese.  supra;  Read  v.  Frankfort  Bank,  23  Me.  318;  Evans 
v.  Montgomery,  4  W.  &  S.  (Penn.)  218;  Hope  v.  Johnson,  2  Yerg.  (Tenn.)  125; 
Curry  v.  Landers,  35  Ala.  280;  Re  Oliver  Lee  &  Co.'s  Bank.  21  N.  Y.  9;  Cutts 
v.  Hardee,  38  Ga.  350;  Hope  v.  Johnson,  2  Yerg.  (Tenn.)  123;  Cook  v.  Gray,  2 
Houst.  (Del.)  455;  Ralston  v.  Lothain,  18  Ind.  303.  "  If,"  says  the  court  in 
[stats,  of  lim. —  3] 


34  STATUTES   OF   LIMITATION.  [CHAP.   I. 

of  a  party  upon  an  existing  contract  may  be  changed,  although 
the  law  effecting  the  change  affects  actions  then  pending.1  Stat- 
utes of  limitation  relate  only  to  the  remedy,2  and  may  be  altered 
or  repealed  before  the  statutory  bar  has  become  complete,  but 
not  after,  so  as  to  defeat  the  effect  of  the  statute  in  extinguishing 
the  rights  of  action ; 3  but  they  cannot  limit  existing  claims  with- 

Terry  v.  Anderson,  95  U.  S.  628,  "  the  legislature  may  prescribe  a  limitation 
where  none  existed  before,  it  may  change  one  which  has  already  been  estab- 
lished. The  parties  to  a  contract  have  no  more  a  vested  interest  in  a  particular 
limitation  than  they  have  in  an  unrestricted  right  10  sue.  They  have  no  more 
a  vested  interest  in  the  time  for  the  commencement  of  an  action  than  they  have 
in  the  form  of  the  action  to  be  commenced."  The  legislature  may  bar  actions 
upon  judgments  of  other  States.  Meek  v.  Meek,  45  Iowa,  294..  Upon  the 
general  proposition  that  the  legislature  has  power  to  change  the  period  of  limi- 
tations as  to  all  claims  not  already  barred,  allowing  a  reasonable  time  for  bring- 
ing actions  theieon,  is  valid,  see  Hyman  v.  Bayne,  83  111.  256;  Dyer  v.  Gill,  32 
Ark.  410;  Pearsall  v.  Kenan,  79  N.  C.  472;  People  v.  Wayne  Cir.  Judge,  37 
Mich.  287;  Krone  v.  Krone,  id.  308;  Sampson  v.  Sampson,  63  Me.  328;  Johnson 
v.  Railroad  Co.,  54  N.  Y.  416.  Even  though  no  provision  therefor  is  made  in 
the  new  law,  if  it  does  not  expressly  take  away  such  right,  it  will  be  construed 
as  giving  a  reasonable  time  after  its  passage  before  existing  claims  are  barred. 
Dale  v.  Frisbie,  59  Ind.  530;  Bratton  v.  Guy,  12  S.  C.  42.  That  the  legislature 
may  give  a  statute  a  retroactive  effect,  see  Ludvvig  v.  Stewart,  32  Mich.  27; 
Horbach  v.  Miller,  4  Neb.  31.  The  legislature  certainly  has  unrestricted  power 
to  change  the  period  of  limitations  as  to  actions  ex  delicto.  Guillotel  v.  New 
York,  55  How.  Pr.  (N.  Y.)  114,  87  N.  Y.  441.  And  the  same  is  also  true  as  to 
all  rights  created  by  statute.     De  Moss  v.  Newton,  31  Ind.  219. 

1  Read  v.  Frankfort  Bank,  supra;  Woods  v.  Buie,  6  Miss.  285;  Evans  v.  Mont- 
gomery, 4  W.  &  S.  (Penn.)  218;  Ralston  v.  Lothain,  supra;  Tucker  v.  Harris,  13 
Ga.  1.  It  cannot,  after  the  rights  of  a  party  have  been  adjudicated,  interfere 
with  the  process  10  enforce  that  right  so  as  to  materially  lessen  the  efficiency  of 
the  right  of  the  judgment  creditor.  Oliver  v.  McClure,  28  Ark.  555.  The 
remedy  provided  for  the  enforcement  of  contracts  may  be  changed  at  the  will 
of  the  legislature,  provided  the  obligation  of  the  contract  is  not  thereby  weak- 
ened, lessened,  or  impaired.  Holland  v.  Dickerson,  41  Iowa,  367.  This  is  so 
even  though  the  act  is  retrospective.  Lane  v.  Nelson,  7g  Penn.  St.  407;  Bald- 
win v.  Newark,  38  N.  J.  F.  334;  Tilton  v.  Swift,  40  Iowa,  78.  Special  statutes 
affecting  or  applying  only  to  a  single  city  or  county,  unless  such  legislation  is 
expressly  prohibited  in  the  Constitution,  are  valid.  Nash  v.  Fletcher,  44  Miss. 
609.  The  period  of  limitation  may  be  shortened.  Guillotel  v.  New  York,  55 
How.  Pr.  (N.  Y.)  114,  87  N.  Y.  441. 

5  Cox  v.  Berry,  13  Ga.  306;  Edwards  v.  McCaddon,  20  Iowa,  520;  Mechanics 
it  Farmers*  Bank's  Appeal,  31  Conn.  63;  Waltermire  v.  Westover,  14  N.  Y.  16; 
Pearce  v.  Patton,  7  B.  Mon.  (Ky.)  162. 

3  Ludwiij  v.  Stewart,  32  Mich.  27;  Thompson  v.  Read,  41  Iowa,  4S;  Pitman 
v.  Bump,  5  Oregon,  17;  Memphis  v.  United  States,  97  U.  S.  293;  Pearsall  v. 
Kenan,  79  N.  C.  472;  Dyer  v.  Gill,  32  Ark.  410;  Terry  v.  Anderson,  95  U.  S. 
628.     Relating  only  to  the  remedy,  the  statute  is  not  a  part  of  the  contract  until 


I".] 


CONSTITUTIONALITY    OF. 


3S 


out  allowing  a  reaonablse  time  after  their  passage  for  parties  to 
bring  an  action.1  (a) 

the  statutory  bar  has  become  complete;  hence,  before  that  time  the  period  of 
limitation  may  be  extended  or  lessened  by  the  legislature  without  becoming 
obnoxious  to  any  constitutional  objection.  Edwards  v.  McCaddon,  20  Iowa, 
420;  Beal  v.  Nason,  14  Me.  344;  Newkirk  v.  Chapron,  17  l!I.  344;  Wright  v. 
Oakley,  5  Met.  (Mass.)  400;  Battles  v.  Fobes,  18  Pick.  (Mass.)  532,  19  id.  578. 
The  repeal  or  amendment  of  a  statute  of  limitations  does  not  apply  to  a  claim 
already  barred  by  the  statute,  because  by  the  lapse  of  the  statutory  period  the 
rights  of  the  parties  have  become  vested,  and  the  legislature  cannot  detract 
from  or  enlarge  them.  Battles  v.  Fobes,  18  Pick.  (Mass.)  532;  Seymour  v. 
Deming,  9  Cush.  (Mass.)  527;  Willard  v.  Clarke,  7  Met.  (Mass.)  435;  Darling  v. 
Wells,  1  Cush.  (Mass.)  508;  Brigham  v.  Bigelow,  12  Met.  (Mass.)  268;  Garfield 
v.  Bemis,  2  Allen  (Mass.)  445.  Thus,  the  legislature  cannot  give  a  remedy  on 
a  claim  already  barred  by  the  statute,  Loring  v.  Boston,  12  Gray  (Mass.)  409; 
Kinsman  v.  Cambridge,  121  Mass.  558;  nor  deprive  a  party  of  the  benefits  of 
such  bar.     Wright  v.  Oakley,  supra;  Battles  v.  Fobes,  supra. 

1  Horbach  v.  Miller,  4  Neb.  31;  Halcombe  v.  Tracy,  2  Minn.  241:  Lockhart 
v.  Yeiser,  2  Bush  (Ky.)  231;  W.  S.  R.  Co.  v.  Stockett,  21  Miss.  395;  Beal  v. 
Nason,  14  Me.  344;  Call  v.  Hagger,  8  Mass.  423,  430.  It  was  early  held  that 
our  statutes  do  not  come  under  the  bar  of  the  U.  S.  Constitution  or  of  the  State 
Constitutions,  except  where  they  are  retrospective,  in  the  legal  sense  of  the 
term;  that  is,  unless  Ihey  imparled  vested  rights.  Gospel  Society  v.  Wheeler, 
2  Gall.  (U.  S.  C.  C.)  105;  Ogden  v.  Saunders,  12  Wheat.  (U.  S.)  349;  Waltermire 
v.  Westover,  14  N.  Y.  16;  Dash  v.  Van  Kleeck,  7  Johns.  (N.  Y  )  477;  Calder  v. 
Bull,    3   Dall.   (Penn.)  386;  Sturges   v.   Crowninshield,   4   Wheat.   (U.  S.)   122. 


{a)  The  statute  of  limitations  in  force 
when  the  remedy  is  sought  is  the  one 
to  be  applied.  See  Wilson  v.  Tucker, 
105  Iowa,  55;  Jones  v.  German  Ins. 
Co.,  no  Iowa,  75;  Relyea  v.  Toma- 
hawk Paper  &  Pulp  Co.,  102  Wis. 
301;  Brunswick  Terminal  Co.  v. 
Baltimore  Nat.  Bank,  99  Fed.  Rep. 
635,  48  L.  R.  A.  625,  and  note.  So 
the  time  within  which  title  to  land 
becomes  fully  barred  by  limitation  de- 
pends upon  the  statute  in  force  at  the 
time  when  the  right  of  action  accrues 
to  the  owner.  McKenzie  v.  A.  P. 
Cooke,  113  Mich.  452.  It  is  now 
settled  that  the  legislature  may  pre- 
scribe a  limitation  for  the  bringing  of 
suits  where  none  previously  existed, 
and  may  shorten  the  time  within  which 
suits  to  enforce  existing  causes  of  ac- 
tions mav  be  commenced,  if  a  reason- 
able time,  under  the  circumstances,  be 
given  by  the  new  law  for  commenc- 
ing suit  before  the  bar  takes  effect. 
Wheeler  v.  Jackson,  137  U.  S.  245,  255; 
Campbell  v.  Haverhill,  155  U.  S.  610. 
615;  Lawton   v.    Waite,    103   Wis.  244, 


256;  Cranor  v.  School  District,  151  Mo. 
119,  81  Mo.  App.  152;  Norris  v.  Tripp 
(Iowa),  82  N.  W.  610;  Gilbert  v.  Acker- 
min,  159  N.  Y.  118;  Warner  v.  Bartle, 
56  N.  Y.  S.  585;  McEldowney  v.  Wyatt, 
(44  W.  Va.  711),  45  L.  R.  A.  609,  and  n.; 
Osborne  v.  Lindstrom  (N.  D.)  46  id. 
715,  and  n.;  Clay  v.  Iseminger,  190 
Penn.  St.  580;  Cuthbert  v.  Downing, 
121  N.  C.  205;  Kelley  v.  Gallup,  07 
Minn.  169;  Guiterman  v.  Wishon,  21 
Mont.  458;  Swamp  Land  District  v. 
Glide,  112  Cal.  85.  "  Whatever  be- 
longs merely  to  the  remedy  may  be 
altered  according  to  the  will  of  the 
State,  provided  the  alteration  does  not 
impair  the  obligation  of  the  contract. 
But  if  that  effect  is  produced,  it  is  im- 
material whether  it  is  done  by  acting 
on  the  remedy  or  directly  on  the  con- 
tract itself.  In  either  case  it  is  pro- 
hibited by  the  Constitution."  Bron- 
son  v.  Kinzie,  1  How.  (U.  S.)  311,  316; 
Barniiz  v.  Beverly,  163  U.  S.  118,  123; 
Shapleigh  v.  San  Angelo,  167  U.  S. 
646,  657;  Bettman  v.  Cowley,  19  Wash. 
207. 


36  STATUTES   OF   LIMITATION.  [CHAP.  I. 

It  has  been  held  in  a  case  decided  by  a  majority  of  the  Supreme 

Statutes  that  bar  a  past  right  of  action,  without  any  provision  for  a  period 
within  which  actions  may  be  brought,  though  impairing  rights  of  private  prop- 
erty, are  held  valid,  and,  as  applied  to  the  remedy  merely,  their  retrospective 
operation  is  no  objection  to  them.  Hope  v.  Johnson,  2  Yerg.  (Tenn.)  123;  United 
States  v.  Samperyac,  1  Hempst.  (U.  S.)  118;  Cults  v.  Hardee,  38  Ga.  350;  Rath- 
bone  v.  Bradford,  1  Ala.  312;  Steamboat  Co.  v.  Barclay,  30  id.  120;  Holcombe 
v.  Tracy,  2  Minn.  241;  Lockhart  v.  Yeiser,  2  Bush  (Ky.)  231;  Cook  v.  Wood,  1 
McCord  (S.  C.)  130;  Beltzhoover  v.  Yewell,  n  G.  &  J.  (Md.)  212;  Cox  v.  Berry, 
13  Ga.  306;  Billings  v.  Hull,  7  Cal.  1;  Blackford  v.  Peltier,  1  Blackf.  (Ind  )  36; 
Griffin  v.  McKenzie,  7  Ga.  163;  Ward  v.  Kilts,  12  Wend.  (N.  Y.)  137;  Ecks'tein 
v.  Shoemaker,  3  Whart.  (Penn.)  15;  Frey  v.  Kirk,  4  G.  &J.  (Md.)  509;  Hawkins 
v.  Barney,  5  Pet.  (U.  S.)  485;  Charles  River  Bridge  v.  Warren  Bridge,  11  Pet. 
(U.  S.)  420.  The  legislature  may  make  a  statute  retrospective  where  it  does 
not  impair  the  obligation  of  a  contract  or  a  vested  right.  Satterlee  v.  Matthew- 
son,  16  S.  &  R.  (Penn.)  169;  Weister  v.  Hade,  52  Penn.  St.  472.  Statutes  relat 
ing  merely  to  the  remedy  are  not  a  part  of  contract  made  while  it  is  in  force; 
therefore  the  legislature  may  alter,  modify,  or  repeal  the  same  at  any  time 
before  rights  have  become  complete  under  them,  and  as  statutes  of  limitation 
merely  relate  to  the  remedy,  the  legislature  may  alter  the  same  at  any  time 
before  a  claim  has  become  barred  under  them.  Miller  v.  Com.,  5  W.  &  S. 
(Penn.)  488.  In  Bigelow  v.  Bemis,  2  Allen  (Mass.)  496,  Bigelow,  J.,  says:  "  It 
is  well  settled  that  it  is  competent  for  the  legislature  to  change  statutes  prescrib- 
ing a  limitation  to  actions,  and  that  the  one  in  force  at  the  time  of  suit  brought 
is  applicable  to  the  cause  of  action.  The  only  restriction  on  the  exercise  of  this 
power  is,  that  the  legislature  cannot  remove  a  bar  or  limitation  which  has 
already  become  complete,  and  that  no  new  limitation  shall  be  made  to  take 
effect  on  existing  claims,  without  allowing  a  reasonable  time  for  parties  to 
bring  actions  before  their  claims  are  absolutely  baired  by  a  new  enactment." 
See  also  to  same  effect  Dillon  v.  Dougherty,  2  Grant's  Cas.  (Penn.)  99;  Morford 
v.  Cook,  24  Penn.  St.  92;  Call  v.  Hagger,  8  Mass.  423;  Smith  v.  Morrison,  22 
Pick.  (Mass.)  430;  and  other  cases  here  cited  in  this  note.  In  Prentice  v.  Dehon, 
10  Allen  (Mass.)  353,  and  Ball  v.  Wyeth,  99  Mass.  338,  it  was  queried  whether 
the  legislature  can  give  a  remedy  upon  a  claim  already  barred.  The  claim 
may  be  sued  in  another  State  and  a  judgment  obtained,  and  an  action  upon 
that  judgment  may  be  maintained  in  the  courts  of  the  State  by  the  statute  of 
which  the  claim  on  which  the  judgment  was  obtained  was  barred.  If  the 
person  against  whom  the  claim  exists  acquires  such  a  vested  right  under  the 
statute,  that  after  the  statute  has  run  upon  the  claim  the  legislature  cannot  give 
a  remedy  thereon,  the  ground  must  be  that  the  claim  is  extinguished  by  the 
statute,  in  which  event  it  ceases  to  be  an  enforceable  obligation  anywhere;  yet 
the  courts  hold,  as  we  have  seen,  that  the  right  is  not  extinguished,  but  only 
the  remedy  thereon  is  taken  away.  Campbell  v.  Holt,  115  U.S.  620.  (a)  In  New 
Hampshire,  in  Woart  v.  Winnick,  3  N.  H.  473,  it  was  held  that  an  act  repealing 
an  act  of  limitation  was,  as  to  all  actions  pending  at  the  time  of  the  repeal, 
rrtrospeclive  and  contrary  to  the  State  Constitution;  and  this,  of  course,  would 

(,i)  See  New  Orleans  v.  New  Orleans     Cleveland,  etc.,  Ry.  Co.,  93  Fed.  Rep. 
\V;itrr  Works  Co.,  142  17.  S,  79;  Sharon     113. 
v.  Tucker,  144  U.  S.  533;   Cleveland  v. 


§  II.]  CONSTITUTIONALITY    OF.  37 

Court  of  the  United  States  1  that,  in  actions  upon  debt,  contract, 
or  any  class  of  actions  in  which  a  party  does  not  become  invested 
with  the  title  to  property  by  the  statute  of  limitations,  the  legis- 
lature may  by  a  repeal  of  the  statute  of  limitations,  even  after  the 

be  the  rule  where  the  Constitution  prohibits  retrospective  laws.  The  law 
seems  to  be  well  settled  that  the  legislature  may  change  the  statute  even  as  to 
existing  claims  if  a  reasonable  time  is  allowed  for  bringing  actions  thereon. 
Nash  v.  Fletcher,  44.  Miss.  609;  Patterson  v.  Gaines,  6  How.  (U.  S.)  550;  Elliott 
v.  Lochnane,  1  Kan.  126;  Pierce  v.  Tobey,  5  Met.  (Mass.)  158:  State  v.  Clark,  7 
Ind.  46S;  Beesley  v.  Spencer,  25  I'l.  216;  Root  v.  Bradley,  1  Kan.  437;  Wright 
v.  Keithler,  7  Iowa,  92,  Cox  v.  Brown,  6  Jones  (N.  C.)  L.  100;  Pearce  v.  Patton, 
7  B.  Mon.  (Ky.)  172;  Callaway  County  v.  Nolley,  31  Mo.  393;  Sleeth  v.  Murphy, 
1  Morris  (Iowa)  321;  Howell  v.  Howell,  15  Wis.  55;  Gilman  v.  Cutts,  23  N.  H. 
376;  Beal  v.  Nason,  14  Me.  344;  Martin  v.  Martin,  3  Ala.  560;  Willard  v. 
Harvey,  24  N.  H.  344;  Webster  v.  Cooper,  14  How.  (U.  S.)  488;  West  Feliciana 
Railroad  Co.  v.  Stockett,  13  S.  &  M.  (Miss.)  395;  Fiske  v.  Briggs,  6  R.  I.  557; 
Bank  v.  Dutton,  9  How.  (U.  S.)  522;  Kilboutne  v.  Lockman,  8  Iowa,  380;  Wins- 
ton v.  Mc.Cormick,  1  Ind.  56;  Pritchard  v.  Spencer,  2  Ind.  486;  Briscoe  v. 
Anketell,  28  Miss.  361;  Slater  v.  Com.,  3  Ohio  St.  80:  Holcombe  v.  Tracy,  2 
Minn.  241 ,  De  Cordova  v.  Galveston,  4  Tex.  470.  Unless  the  statute  expressly 
so  provides,  a  change  in  the  law  does  not  operate  upon  claims  then  existing, 
but  only  upon  those  subsequently  arising.  Gibbons  v.  Goodrich,  3  111.  App. 
590;  Van  Hook  v.  Whitlock,  3  Paige  Ch.  (N.  Y.)  409;  Deal  :/.  Patterson,  14  La. 
Ann.  72S;  Calvert  v.  Lowell,  10  Ark.  147;  Didier  v.  Davidson,  2  Barb.  Ch.  (N. 
Y.)477;  Ashbrook  v.  Quarks'  Heirs,  15  B.  Mon.  (Kv.)  20;  Calkins  v.  Calkins, 
3  Barb.  (N.  Y.)  305;  Lucas  v.  Tunstall,  6  Ark.  443;  Ridgeley  v.  Steamboat  Rein- 
deer, 27  Mo.  442;  People  v.  Supervisors,  10  Wend.  (N.  Y.)  306,  Clemens  v. 
Wilkinson,  10  Miss.  97;  Gordon  v.  Mounts,  2  Greene  (Iowa)  343;  McKenney  v. 
McKenney,  8  Ohio  St.  423;  Williamson  v.  Field,  2  Sandf.  (N.  Y.)  Ch.  533; 
Thompson  v.  Alexander,  11  111.  54;  Dickerson  v.  Morrison,  5  Ark.  316;  Scar- 
borough v.  Dugan,  10  Cal.  305;  Brown  v.  Wilcox,  22  Miss.  127;  Paddleford  v. 
Dunn,  14  Mo.  517;  Hinch  v,  Weatherford,  2  Greene  (Iowa)  244;  Boyd  v.  Barren- 
ger,  23  Miss.  269.  That  a  statute  may  extend  the  time  of  limitation  upon  exist- 
ing claims  has  been  frequently  held,  but  it  cannot,  and  does  not,  revive  those 
already  barred.  Bradford  v.  Shine,  13  Fla.  393;  Rogers  v.  Handy,  24  Vt.  620: 
Winston  v.  McCormick,  1  Smith  (Ind.)  8;  Wright  v.  Oakley,  5  Met.  (Mass.)  400, 
Morf ord  v.  Cook,  supra;  Garfield  v.  Bemis,  2  Allen  (Mass.)  445 ;  Baldro  v.  Tolmie, 

1  Oregon,  176;  Jay  v.  Thompson,  1  Doug.  (Mich.)  373;  Hill  v.  Kricke,  n  Wis. 
442;  Sprecker  v.  Wakely,  id.  432;  Hawkins  v.  Campbell,  6  Ark.  513;  Couch  v. 
McKee,  id.  484;  Wires  v.  Farr.  25  Vt.  41;  Walker  v.  Bank,  6  Ark.  561;  Davis 
v.  Minor,  1  How.  (Miss.)  183;  Robb  v.  Harlan,  7  Penn.  St.  292;  Stipp  v.  Brown, 

2  Ind.  647;  Clark  z.  Bank,  10  Ark.  512;  Brown  v.  Wilcox,  22  Miss.  127;  McKin- 
ney  v.  Springer,  8  Blackf.  (Ind.)  506;  Forsyth  v.  Ripley,  2  Greene  (Iowa)  181; 
Knox  v.  Cleaveland,  13  Wis.  245;  Dillon  v.  Dougherty,  2  Grant's  Cas.  (Penn.) 
99;  Yancey  v.  Yancey,  5  Heisk.  (Tenn.)  353;  but  acts  only  on  existing  rights, 
Cox  v.  Davis,  17  Ala.  714;  Chandler  v.  Chandler,  21  Ark.  95;  Henry  v.  Thorpe, 
14  Ala.  103;  Coady  v.  Reins,  r  Mont.  424. 

1  Campbell  v.  Holt,  115  U.  S.  620. 


38  STATUTES    OF    LIMITATION.  [CHAP.   I. 

right  of  action  thereon  is  barred,  restore  to  the  plaintiff  his 
remedy  thereon,  and  divest  the  other  party  of  the  statutory  bar. 
The  doctrine  of  this  case  is  undoubtedly  technically  correct,  and 
was  suggested  in  the  first  edition  of  this  work.1  It  is,  however, 
opposed  to  the  great  weight  of  authority  in  this  country,  and  to 
the  policy  of  these  statutes.  There  can  be  no  question  that  the 
legislatures  of  the  several  States  by  the  passage  of  the  statute  of 
limitations  intended  a  permanent  divestment  of  a  right  of  action 
in  all  matter  to  which  the  statute  relates,  when  it  had  run  against 
them,  and  they  had  thereby  become  barred.  And  while  it  may 
be,  as  already  suggested,  that  the  reasoning  of  the  court  is  correct, 
yet  the  wisdom  of  the  doctrine  announced  is  questionable.2^) 

Another  rule  in  reference  to  all  statutes  is  that  they  are  to  be 
so  construed  as  to  have  a  prospective  effect  merely,  and  will  not 
be  permitted  to  affect  past  transactions,  unless  such  intention  is 
clearly  and  unequivocally  expressed.3     Under  this  rule  a  change 

1  In  note  I,  page  23. 

5  Martin  v.  Martin,  35  Ala.  560;  McCracken  Co.  v.  Mercantile  Trust  Co.,  84. 
Ky.  344;  Kinsman  v.  Cambridge,  121  Mass.  52S;  Atkinson  v.  Dunlap,  50  Me. 
511;  Dyer  v.  Gill,  32  Ark.  410;  Willoughby  v.  George,  5  Col.  80;  Mayor,  etc. 
v  Sehner,  37  Md.  180;  Ludwig  v.  Stewart,  32  Mich.  27;  Power  v.  Telford,  60 
Miss.  195;  Pitman  v.  Bump,  5  Oregon,  15;  Rockport  i1.  Walden,  54  N.  H.  167. 
See  notes  pages  24  to  35. 

3  Com.  v.  Sudbury.  106  Mass.  268;  Whitman  v.  Hapgood,  ro  Mass.  437;  Gar. 
field   v.   Bemis,   2  Allen  (Mass.)  445;  Jaruis  v.   Jarvis,   3   Edw.  Ch.  (N.  Y.)  462; 

(a)  The    Supreme   Court    of    Illinois  criminal  limitations.      Moore  :.  State, 

holds  that  "  a  right  of  defense  against  43    N.   J.    L.    203;    People   v.   Lord,    12 

a  money  demand  arising  from  the  com-  Hun,    282;  State    v.    Sneed,   25    Texas 

plete  running  of  the  statute  of  limita-  Sup.    66.     See    17  Albany   L.   Journal, 

tions,  is  property  within  the  protection  183. 

of  the   constitutional  guaranty  of  due  That  non-residents  may,  it  seem,  be 

process  of  law."      Fish  v.  Farwell,  160  excluded   from    the    benefit  of  a  State 

111.  236.     See  also  Board  of  Education  statute  of  limitations,  see  Bates  v.  Cul- 

v.  Blodgett,  155   111.  441,  447;  Gibbs  v.  lum,  177  Penn.  St.  633 

Chicago  Title  Co.,  79  111.  App.  22.      In  When,  in  an  action   brought  in  one 

Wisconsin    the    court    adheres    to    its  State    on     a     judgment    obtained    in 

former  decisions  that  when  the  limita-  another  State,  the   plea  of  the  statute 

lion  operates  toextinguish  the  contract  of  limitations  is  interposed,  it  is  merely 

or  debt,  the  case  no  longer  falls  within  a   plea   to  the  remedy,  and  the  lex  fori 

the  law   of   limitation   on   the   remedy  governs;  and,  in  such  anion,  the  stat- 

mcrely.     In  such  cases  when  the  debt  ute   of    another  State    prescribing   the 

or   judgment    is    sued    on    in    another  effect  of   absence  from    the  State  upon 

State,  the  lex  loci  contractus  and  not  the  the   commencement  of   actions,   being 

lex  fori   is   to   govern.      Eingartner   v.  local,  forming  no  part  of  the  judgment, 

Illinois   Steel    Co,  103   Wis.   373.     See  and  operating  upon   the  remedv  only, 

Whitney    "'.    Wegler.     54     Minn.    235;  has  no  effect    upon   the  suit.     Lamber- 

M    Eldowney  v.  Wyalt  (44  W   Va.  711),  ton  v.  Grant,  94  Maine,  508.     See  Wat- 

45  1..  R.  A    609,  and  n,  son    v.    Southwick,     2     Marvel    (Del.) 

The  same    1  msideralions    apply    to  254. 


§11.]  CONSTITUTIONALITY    OF.  39 

in  the  statute  of  limitations  does  not  affect  existing  claims,  unless 
such  is  clearly  the  intention  of  the  legislature;  and  especially  is 
this  the  case  where  actions  are  pending  upon  such  claims  when 
the  statute  is  passed.1  If  the  statute  is  to  have  such  effect,  either 
by  necessary  inference  or  from  its  express  terms,  it  is  held  in 
some  cases  to  be  void,  unless  it  gives  a  reasonable  time  for  bring- 
ing actions  before  it  goes  into  operation ; 2  but,  upon  the  theory 
that  the  statute  only  relates  to  the  remedy,  it  would  seem  that  it 

People  v.  Supervisors  of  Columbia,  43  N.  Y.  130;  People  v.  Supervisors  of 
Ulster,  63  Barb.  (N.  Y.)  83;  New  York,  etc..  R.  Co.  v.  Van  Horn,  57  N.  Y.  473; 
Hoch's  Appeal,  72  Penn.  St.  53;  Oliphant  v.  Smith,  6  Waits  (Penn.)  449;  Phila- 
delphia v.  Passenger  R.  Co.,  52  Penn.  St.  177;  Steckel's  Appeal,  64  id.  493; 
Journeay  v.  Gibson,  56  id.  57;  State  v.  Vreeland,  34  N.  J.  L.  438;  Belvidere  v. 
Warren  R.  R.  Co.,  id.  193;  Baldwin  v.  Newark,  38  id.  158;  Ex  parte  Graham, 
13  Rich.  (S.  C.)  277,  Finney  v.  Ackerman,  21  Wis.  268;  Hopkins  v.  Jones,  22 
Ind.  210;  Miller  -v.  Com.,  5  W.  &  S.  (Penn.)  488;  Benjamin  v.  Eldridge,  50  Cal. 
612;  Smith  v.  Humphrey,  20  Mich.  398;  Stambaugh  v.  Snoblin,  32  id.  296; 
Harrison  v.  Metz,  17  id.  377;  Ludwig  v.  Stewart,  32  id.  27;  Price  v.  Hopkins, 
13  id.  31S. 

1  Hooker  v.  Hooker,  18  Miss.  599;  Battles  v.  Fobes,  supra;  Wright  v.  Oakley, 
5  Met.  (Mass.)  400.  Thus,  in  Massachusetts,  where  the  statute  was  silent  as  to 
the  matter,  it  was  held  that  a  statute  which  shortened  the  period  of  limitations 
of  aciions  by  creditors  against  executors  or  administrators  from  four  to  two 
years,  did  not  apply  to  executors  or  administrators  who  gave  bonds  before  the 
law  took  effect.     King  v.  Tirrell,  2  Gray  (Mass.)  331. 

'•'Call  v.  Hagger,  8  Mass.  423;  Willard  v.  Harvey,  24  N.  H.  344;  Blackford 
v.  Peltier,  1  Blackf.  (Ind.)  36;  Cook  v.  Kendall,  13  Minn.  324;  Osborn  v.  Jaines, 
17  Wis.  573;  Proprietors  v.  Laboree,  2  Me.  275  294;  Maltby  v.  Cooper,  1  Morr. 
(Iowa)  59;  Society  v.  Wheeler,  2  Gall.  (U.  S.  C.  C.)  141.  In  Slate  v.  Vreeland, 
34  N.  J.  L.  438,  it  was  held  that  an  act  which  merely  limits  ihe  time  within 
which  an  action  shall  be  brought  will  not  apply  to  a  suit  pending  when  the  act 
goes  into  effect,  although  it  was  not  brought  until  after  the  act  was  passed. 
Black  v.  Swanson,  49  Ga.  424.  In  Libbett  v.  Maultsby,  71  N.  C.  345,  it  was  held 
that,  where  the  right  of  action  by  a  cestui  que  trust  accrued  prior  to  the  adoption 
of  the  Code  in  August,  1868,  the  limitation  prescribed  therein  did  not  apply,  but 
was  governed  by  the  law  as  it  stood  before  ihe  enactment  of  the  Code.  In  Sohn 
v.  Waterson,  17  Wall.  (U.  S.)  596,  it  was  held  that  a  statute  of  limitations  may 
have  effect  upon  actions  which  have  already  accrued  to  the  day  of  passage  as 
well  as  upon  those  which  accrue  afterwards,  bul  that  such  will  not  be  presumed 
to  be  the  intent  of  the  legislature;  and  that,  ordinarily,  the  true  rule  for  apply- 
ing a  statute  of  limitations  to  rights  of  action  already  accrued  is  to  allow  the 
party  the  statutory  time  for  suing,  computing  it  from  the  passage  of  the  act. 
and  to  consider  the  limitation  as  commencing  at  the  time  when  the  cause  of 
action  is  first  subjected  to  the  operation  of  the  statute  of  limitations.  In  Samp- 
son v.  Sampson,  63  Me.  328,  it  was  held  that  it  was  competent  for  the  legisla- 
ture to  shorten  the  period  of  limitations  as  to  existing  claims  provided  sufficient 
time  is  allowed  for  bringing  actions  thereon  before  the  statute  runs. 


40  STATUTES    OF    LIMITATION.  [CHAP.   I. 

is  competent  for  the  legislature  to  repeal  the  statute  in  toto,  and 
make  such  repeal  operative  as  to  all  existing  claims  upon  which 
the  statute  has  not  run.1  An  important  exception  as  to  the 
power  of  the  legislature  to  change  the  law  of  limitations  as  to 
existing  rights,  which  is,  that  it  has  not  the  power  to  shorten  the 
period  of  limitation  upon  municipal  bonds  issued  for  sale  in  a 
foreign  market.  In  such  cases,  the  statute  in  force  when  the 
bonds  were  issued  is  treated  as  being  a  part  thereof,  so  that  it 
cannot,  as  to  such  bonds,  be  repealed ; 2  and  especially  would 
this  be  the  case  if  the  limitation  was  fixed  by  the  statute  author- 
izing the  issue  of  the  bonds. 

Sec.  12.  What  Statute  governs.  —  If  before  the  statute  bar  has 
become  complete  the  statutory  period  is  changed,  and  no  mention 
is  made  of  existing  claims,  it  is  generally  held  that  the  old  law  is 
not  modified  by  the  new,  so  as  to  give  to  both  statutes  a  pro- 
portional effect;  but  that  the  time  past  is  effaced,  and  the  new 
law  governs.  The  period  provided  by  the  new  law  must  run  upon 
all  existing  claims,  in  order  to  constitute  a  bar.3  In  other  words, 
the  statute  in  force  at  the  time  the  action  is  brought  controls,4 

1  Conkey  v.  Hart,  14  N.  Y.  22;  Stocking  v.  Hunt,  3  Den.  (N.  Y.)  274;  Hill  v. 
Boyland,  40  Miss.  618.  As  statutes  of  limilation  pertain  not  to  the  essence  of 
the  contract,  it  is  in  the  power  of  the  State  legislatures  to  regulate  the  remedy 
and  modes  of  proceeding  in  relation  to  past  as  well  as  future  contracts,  subject 
only  to  the  restriction  thai  it  cannot  be  exercised  so  as  to  take  away  all  remedy 
upon  the  contract,  or  to  impose  upon  its  enforcement  new  burdens  and  restric- 
tions which  materially  impair  its  value.  Briscoe  v.  Anketell,  28  Miss.  361; 
Swickard  v.  Bailey,  3  Kan.  507;  Nelson  v.  North,  1  Overt.  (Tenn.)  33. 

''  Peerless  p.  City  of  Watertown,  6  Biss.  (U.  S.)  79. 

8  Henry  v.  Thorpe,  14  Ala.  103;  Martin  v.  Mariin,  35  id.  560;  Howell  v. 
Howell,  15  Wis.  55;  United  States  v.  Ballard,  3  McLean  (U.  S.)  469;  Forsyth  v. 
Ripley,  2  Greene  (Iowa)  181.  But  see  Pollard  v.  Tait,  38  Ga.  439.  See  Gilman 
v.  Cutts,  23  N.  II.  376.  In  Indiana,  it  is  said  to  be  a  general  rule  that  the 
statute  in  iorce  at  the  commencement  of  the  action  controls.  State  v.  Clark,  7 
Ind.  468.  See  also  Moore  v.  Lobbin,  26  Miss.  301;  Hazlet  r/.  Critchfield,  7 
Ohio,  497. 

4  Patterson  v.  Gaines,  6  How.  (U.  S.)  556;  Marston  v.  Seabury,  3  N.  J.  L.  435; 
Pritchard  v.  Spencer,  2  Ind.  486;  Root  v.  Bradley,  1  Kan.  430;  Walker  v.  Bxnk 
of  Mississippi,  7  Ark.  500;  Phares  v.  Walters,  6  Iowa,  106;  Moore  v.  Lobbin,  26 
Miss.  394;  Gilman  z.  Cutts,  23  N.  H.  376.  Provided  a  reasonable  time  has  been 
given  for  the  bringing  of  actions  upon  existing  claims.  Sampson  v.  Sampson, 
(>2  Me.  328.  In  Goillotel  v.  New  York,  87  N.  Y.  441,  it  was  held  that,  irrespec- 
tive of  the  question  of  the  power  of  the  legislature  to  enact  statutes  of  limitation 
that  operate  retrospectively,  the  statute  of  six  years  and  not  that  of  one  applied 
to  the  plaintiff's  right  of  action.      In   Ely  v.  Holton,  15  N.  Y.  595,  in  construing 


§  12.]  WHAT    STATUTE    GOVERNS.  41 

unless  the  time  limited  by  the  old  statute  for  commencing  an 
action  has  elapsed,  while  the  old  statute  was  in  force,  and  before 
the  suit  is  brought,  in  which  case  the  suit  is  barred,  and  no  subse- 
quent statute  can  renew  the  right  or  take  away  the  bar.1  The 
question,  however,  as  to  whether  the  statute  is  to  have  a  retro- 
spective operation  is  one  of  construction,  to  be  determined  from 
the  language  of  the  act  and  the  intention  of  the  legislature  as 
gathered  therefrom  and  the  subject-matter  to  which  it  applies; 
the  rule  being,  as  previously  stated,  that  a  statute  will  not  be  per- 
mitted to  have  a  retrospective  operation  unless  such  was  clearly 
the  intention  of  the  legislature.2 

In  Georgia,  where  a  statute  was  passed  Jan.  I,  1863,  providing 
for  the  acquisition  of  title  to  land  by  prescription  as  a  substitute 
for  a  previous  statute,  the  court  held  that  possession  which  had 
been  running  before  that  act  was  passed,  and  was  ripening  into 
a  title,  was  not  lost,  as  such  was  not  the  evident  intention  of  the 
legislature,   and  the  defendant   was  permitted  to  tack  the  time 


another  section  of  the  old  Code,  this  court  gave  such  distributive  character  to 
the  use  of  the  word  "  thereafter  "  holding  it  to  applv  at  the  date  of  the  enact- 
ment, and  also  at  the  date  of  an  amendment.  See  also  Matter  of  Peugnet,  67 
N.  Y.  441.  See  Acker  v.  Acker,  81  N.  Y.  143,  where  it  was  held  that  unless  the 
new  statute  saves  existing  claims  from  its  operation,  it  applies  to  them  as  well 
as  others. 

1  Baldro  v.  Tolmie,  1  Oregon,  176;  Bradford  v.  Brooks.  2  Aik.  (Vt.)  284; 
McKinney  v.  Springer,  8  Blackf.  (Ind.)  506;  Woart  v.  Winnick,  3  N.  II.  473; 
Lewis  v.  Webb,  3  Me.  326;  Holden  v.  James,  n  Mass.  396;  Piatt  v.  Vattier,  1 
McLean  (b\  S.)  146;  Davis  :•.  Minor,  1  How.  (Miss.)  183;  Stipp  v.  Brown,  2  Ind. 
647.  In  Kinsman  v.  City  of  Cambridge,  121  Mass.  558,  it  was  held  that  the 
statute  of  1874,  extending  the  time  for  riling  a  petition  for  damages  for  land 
taken  to  widen  a  street,  did  not  revive  an  action  already  barred  by  the  statute 
existing  before  the  new  act  was  passed. 

5  For  instances  in  which  it  has  bsen  held  that  a  statute  of  limitation  does  not 
apply  to  causes  of  action  which  existed  before  its  passage,  see  Weber  v.  Manning, 
4  Mo.  229;  Thompson  v.  Alexander,  11  111.  54;  Hall  v.  Minor,  2  Root  (Conn.) 
223:  Central  Bank  v.  Solomon.  20  Ga.  408;  Paddleford  v.  Dunn,  14  Mo.  517; 
Ashbrook  v.  Quarles,  15  B.  Mon.  (Ky.)  20;  Moore  v,  McLendon,  10  Ark.  512; 
Calvert  v.  Lowell,  id.  147;  Deal  v.  Patterson,  12  La.  Ann.  602;  Stine  v.  Ben- 
nett, 13  Minn.  153;  Whitworth  v.  Ferguson,  18  La.  Ann.  60.  In  Eaton  v.  Super- 
visors of  Manitowoc,  40  Wis.  668,  an  act  prescribing  a  new  limitation  of  time 
for  suing  a  county  to  recover  back  sums  of  money  paid  to  it  upon  illegal  tax 
certificates  was  passed  in  April,  1867,  but  was  not  to  take  effect  until  Jan.  1, 
1868;  and  the  court  held  that  this  provision  prevented  the  bar  of  the  statute 
taking  effect  upon  rights  of  action  acquired  before  Jan.  1,  1S6S,  and  that  this 
was  a  reasonable  period  within  which  to  bring  an  action. 


42  STATUTES   OF   LIMITATION.  [CHAP.   I. 

already  passed  to  that  required  by  the  new  statute. !  I  n  M  ichigan,2 
a  statute  passed  in  1867  provided  that  "  every  action  upon  a  judg- 
ment rendered  in  a  court  of  record  of  the  United  States,  or  this 
or  any  other  State,  shall  be  brought  within  ten  years  next  after 
the  judgment  was  entered  and  not  afterwards;  and  any  action 
upon  such  judgment  which  shall  not  be  commenced  within  the 
time  above  specified  shall  be  forever  thereafter  barred,"  was  held 
to  be  prospective  and  applicable  only  to  judgments  rendered 
after  the  act  took  effect.  In  Pennsylvania,  an  act  of  limitation 
passed  in  1785,  making  twenty-one  years'  adverse  possession  of 
lands  necessary  to  give  title  to  the  person  in  possession,  was  held 
to  be  retrospective,  applying  as  well  to  rights  then  existing  as  to 
those  afterwards  arising.3  In  Massachusetts,  in  an  early  case,4 
Shaw,  C.  J.,  in  discussing  the  question  whether  a  person  has  a 
vested  right  to  plead  the  statute,  intimated  that  it  might  not  be 
proper  in  technical  strictness  to  say  that  he  had,  especially  to  the 
extent  that  it  could  not  be  taken  away  by  the  legislature ;  yet  the 
court  refused  to  give  such  an  application  to  the  statute  under 
consideration,  or  to  admit  that  the  legislature  possessed  the  power 
to  take  away  such  right  after  the  bar  had  become  complete.  In 
a  later  case  in  that  State  5  the  same  doubt  upon  this  question  was 
expressed  Elsewhere  the  courts  have  entertained  no  doubt  upon 
this  point,  but  have  universally  held  that,  after  the  statute  bar 
has  become  complete,  the  debtor  has  acquired  a  vested  right 
which  the  legislature  cannot  defeat  or  take  away  by  subsequent 
legislation.6  Plausible  reasons  can  be  advanced  both  for  and 
against  the  general  doctrine.  It  is  generally  conceded  that,  as 
these  statutes  are  not  treated  as  elements  entering  into  the  con- 

1  Pollard    v.    Tait,    38    Ga.    439.      But   see    Henry    v.    Thorpe,    14    Ala.    103, 
contra. 

1  Harrison  v.  Metz,  17  Mich.  377. 

3  Packer  v.  Gonsalus,  10  S.  &  R.  (Penn.)  147. 

4  Wright  v.  Oakley,  5  Met.  (Mass.)  400. 
;'  Ball  v.  Nye,  99  Mass.  38. 

r'  Atkinson  v.  Dunlap,  50  Me.  Ill;  Bigg's  Appeal,  43  Penn.  St.  512;  Ryder  v. 
Wilson,  40  N.  J.  L.  q;  Sprecker  v.  Wakeley,  11  Wis.  432;  Baldro  7'.  Tolmie,  1 
'  >i  jon,  [76;  Piatt  v.  Vattier,  1  McLean  (U.  S.)  146;  Holden  v.  James,  11  Mass. 
396;  Woart  v.  Winnick,  3  N.  II.  473;  Bradford  v.  Brooks,  2  Aiken  (Vl.)  284; 
Lewi  l  v.  Webb,  3  Me.  326;  Woodman  v.  Fulton,  47  Miss.  682;  Naught  v.  O'Neal, 
1  III.  36;  Girdner  v.  Stephens,  1  Heisk.  (Tenn.)  280;  Parish  v.  Eager,  15  Wis. 
5tipp  v.  Brown,  2  Ind.  647;  McKinney  7>.  Springer,  8  Blackf.  (Ind.)  506; 
Martin  v.  Martin,  35  Ala.  560 


§  1 3-]  EFFECT   OF   CHANGE.  43 

tract,  the  legislature  may  shorten  or  lengthen  the  period  of  limita- 
tion at  any  time  before  the  bar  has  become  complete.1 

SEC.  1 3.  Effect  of  Change  of  Statute  as  to  Crimes.  —  In  reference 
to  crimes,  where  the  statute  fixes  a  period  within  which  an  indict- 
ment for  certain  offenses  shall  be  found,  while  perhaps  it  cannot 
technically  be  said  that  the  criminal,  by  the  lapse  of  the  statutory 
period,  has  acquired  a  vested  right  under  the  statute,  yet  it  may 
be  said  that  the  State,  though  retaining  the  power  to  prosecute 
and  punish  for  the  crime  at  any  time  before  the  statute  had  run 
thereon,  yet  by  neglecting  to  do  so,  is  to  be  treated  as  having  con- 
doned the  crime,  so  that  it  is  afterwards  estopped  from  prosecut- 
ing for  it,  as  much  as  it  would  be  from  withdrawing  an  absolute 
and  unconditional  pardon  after  it  had  once  been  granted  and 
delivered.  But  it  has  recently  been  held  by  a  court  of  high 
authority  that  the  same  principle  applies  in  this  respect  in  crimi- 
nal as  in  civil  cases.2 

The  court  further  held  that  this  condition  is  unassailable  by 
subsequent  legislation,  repudiating  the  doctrine  advanced  by  Mr. 
Bishop  3  that  a  criminal  statute   of  limitation    simply  withholds 

1  Gilman  v.  Cutts,  23  N.  H.  376;  Martin  v.  Martin,  35  Ala.  560;  Howell  v. 
Howell,  15  Wis.  55;  Cook  r.  Kendall,  13  Minn.  324;  Forsyth  v.  Ripley,  2  Greene 
(Iowa)  181. 

2  Moore  v.  State,  40  N.  J.  L.  384,  where  Dixon,  J.,  said:  "  The  statute  of 
iimitation,  in  declaring  that  no  person  shall  be  prosecuted,  tried,  or  punished 
for  an  offense,  unless  the  indictment  be  found  within  two  years  after  the  crime, 
in  effect  enacts  that  when  the  specified  period  shall  have  arrived  the  right  of  the 
State  to  prosecute  shall  be  gone  and  the  liability  of  the  offender  to  be  punished 
—  to  be  deprived  of  his  liberty  —  shall  cease.  Its  terms  not  only  strike  down 
the  right  of  action  which  the  State  had  acquired  by  the  offense,  but  also  removes 
the  flaw  which  the  crime  had  created  in  the  offender's  title  to  liberty.  In  this 
respect  its  language  goes  deeper  than  statutes  barring  civil  remedies  usually 
do.  They  expressly  take  away  only  the  remedy  by  suit,  and  that  inferentiallv 
is  held  to  abate  the  right  which  such  remedy  would  enforce,  and  perfect  the 
title  which  such  remedy  would  invade;  but  this  statute  is  aimed  directly  at  the 
very  right  which  the  State  has  against  the  offender,  the  right  to  punish,  at 
the  only  liability  which  the  offender  has  incurred,  and  declares  that  this  right 
and  this  liability  are  at  an  end.  Corresponding  provisions  in  a  statute  concern- 
ing lands  would  undoubtedly  be  held  to  extinguish  every  vestige  of  right  in 
him  who  had  not  asserted  his  claim,  and  to  perfect  the  title  of  the  possessor. 
Giving  them  the  same  force  regarding  crimes,  they  annihilate  the  State's  power 
to  punish,  and  restore  the  offender's  rights  to  their  original  status."  See 
Dinckerlocker  v.  Marsh,  75  Ind.  548. 

3  Statutory  Crimes,  §  266.  The  doctrine  stated  by  this  text-writer  is  not  only 
■without  any  foundation  in  reason,  but  is  also  wholly  unsustained  by  authority. 


44  STATUTES   OF   LIMITATION.  [CHAP.   I. 

from  the  courts  jurisdiction  over  the  offense  after  the  specified 
period,  and  that  it  is  competent  for  the  legislature  to  revive  the 
old  jurisdiction,  or  create  a  new  one,  when  the  prosecution  may 
proceed. 

In  reference  to  changes  in  the  period  of  limitations  made  before 
the  statute  bar  has  become  complete,  it  is  held,  in  reference  to 
criminal  as  in  civil  actions,  that  the  legislature  may  in  such  cases 
either  repeal,  extend,  or  otherwise  change  the  statute,  and  make 
it  applicable  to  offenses  already  committed.1  Where  the  legisla- 
ture amended  the  statute  as  to  the  limitation  for  forgery,  so  as  to 
extend  its  period  from  two  to  five  years,  and  the  crime  with 
which  the  respondent  was  charged  was  committed  previous  to 
such  change,  his  claim  that  the  legislature  could  not  change  the 
statute  so  as  to  deprive  him  of  its  benefit  as  existing  when  the 
crime  was  committed,  was  denied  by  the  court. (a) 

Dixon,  J.,  in  the  case  last  cited,  in  commenting  upon  this  statement,  pertinently 
said:  "'  Evidently  this  doctrine  would  upset  the  uniform  train  of  decisions  in 
civil  causes,  and,  moreover,  it  would  be  a  strained  and  unnatural  construction 
of  our  act,  to  say  that  it  simply  withholds  jurisdiction  from  the  courts.  Its 
language  is,  '  No  person  shall  be  prosecuted,  tried,  or  punished.'  It  does  not 
relate  to  the  courts,  but  to  the  person  accused.  The  answer,  which  under  it 
the  respondent  must  make  to  an  accusation  before  the  tribunal  which  once  had 
the  right  to  punish  him,  is  not  that  the  court  has  no  jurisdiction  to  inquire  into 
his  guilt  or  innocence  and  pass  judgment,  but  that  after  inquiry  the  court  must 
pronounce  judgment  or  acquit.  And  probably  no  one  would  contend  that, 
after  such  judgment,  any  change  in  the  law  would  legally  subject  the  defend- 
ant to  a  second  prosecution.  Yet  an  acquittal  by  a  court  without  jurisdiction 
is  void.  I  Hawkins,  P.  C.  c.  35.  It  cannot  be  maintained,  then,  that  the  act 
impairs  jurisdiction." 

1  Com.  v.  Duffy,  q6  Penn.  St.  506.  Green,  J.,  in  passing  upon  this  question, 
said:  "At  the  lime  ihe  act  of  1877  was  passed  the  defendant  was  not  free  from 
conviction  by  force  of  the  two  years'  limitation  of  1S60.  lie  therefore  had 
acquired  no  righl  to  acquiltal  on  that  ground.  Now,  an  act  of  limitation  is  an 
act  of  grace  purely  on  the  part  of  the  legislature.  Especially  is  this  the  case 
in  the  matter  of  criminal  prosecutions.  The  State  makes  no  contract  with 
criminals,  at  the  time  of  the  passage  of  an  act  of  limitations,  that  they  shall 
have  immunity  from  punishment  if  not  prosecuted  within  the  statutory  period. 
Such  enactments  aie  matters  of  public  policy  only.  They  are  entirely  subject 
to  the  will  of  the  legislative  power,  and  may  be  changed  or  repealed  altogether, 
as  that  power  may  see  fit  to  declare.  Such  being  the  character  of  this  kind  of 
legislation,  we  hold  that,  in  any  case  where  a  right  to  acquittal  has  not  been 
absolutely  a<  quired  by  the  period  of  limitation,  that  period  is  subject  to  enlarge- 
ment or  rep'-al,  without  being  obnoxious  to  the  constitutional  prohibition  against 
I  /"/  A'  1  1  ws.  " 

(a)  To  t!i<-  same  effect,  see  State  v.  Moore,  42  N.  J.  L.  208. 


§  1 4-]  EFFECT   OF   CHANGE.  45 

In  New  York  such  statutes  are  held  not  to  apply  to  crimes 
committed  before  the  statute  was  changed,  unless  expressly 
included  therein,  adopting  the  rule  in  that  respect  applicable  in 
civil  cases.1  leaving  the  question  as  to  what  the  rule  would  be 
where  the  statute  is  expressly  applied  to  crimes  already  com- 
mitted, but  not  barred,  undecided. (a) 

Sec.  14.  Hule  when  Title  to  Land  is  concerned.  —  When  a  title 
to  land  has  been  acquired  by  adverse  possession  under  a  statute, 
the  legislature  cannot  destroy  the  same,  and  a  repeal  of  the 
statute  does  not  divest  the  title;  but  at  any  time  before  title  has 
become  vested  it  may  be  repealed  or  altered,  either  by  shorten- 
ing or  lengthening  the  period  required  to  make  the  title  absolute.2 

1  People  v.  Lord,  12  Hun  (N.  Y.)  282. 

2  Knox  v.  Cleveland,  13  Wis.  245. 

(a)  The  exception  by  which  a  fraudu-  for  crimes  not  punishable  with  death, 

lent  concealment  of  a  cause  of  action  an     indictment    for    obtaining     money 

or  proceeding  suspends  the  statute  of  by    false    pretenses    is    barred    if    the 

limitations  applies  onl}  in  civil   cases  money   was   obtained    within    the   two 

and  appears  not  to  have  been  made  in  years  though  the  pretenses  were  made 

criminal  procedure.     State  v.  Nute,  63  more  than  two  years  prior  to  the  indict- 

N.    H.   79.     Thus,    a  statute,   limiting  ment.     State  v.    Riley    (N.    J.    L.),    46 

the  time  for  bringing  prosecutions  for  Atl.  700. 

embezzlement  by  public  officers  begins  In  general,  one  prosecution  succeed- 
to  run  when  the  offense  is  committed,  ing  another,  which  is  dropped,  cannot 
not  when  it  is  discovered  or  appears  be  considered  a  continuation  of  the  first 
probable  from  failure  to  pay  on  de-  as  to  limitation.  See  Com.  v.  T.  J. 
mand.  Ibid.;  Weimer  v.  People,  186  Megibben  Co.,  101  Ky.  195;  White  v. 
111.  503;  Baschleben  v.  People,  18S  111.  State,  103  Ala.  72;  Jackson  v.  State, 
261.     Under  a  limitation  of  two  years  106  Ala.  136. 


46  STATUTES   OF   LIMITATION.  [CHAP.   II. 


CHAPTER  II. 
What  Actions  on  Simple  Contracts  May  be  Barred. 

Sec.  15.  No    Limitation    at    Common     Sec.  21.   For    Torts,    Assumpsit    lies, 
Law.  when. 

16.  Causes  of  Action   on  Simple  22.  Lapse    of     Statutory    Period 

Contracts  embraced  by  Stat-  does    not     give     Title     to 

ute  of  James  I.  Pledgee  of  Property. except. 

17.  Deposits  with  Bankers,  within  23.   Clauses  in   the   Several  Stat- 

Statute  of  James.  utes  that  cover  Simple  Con- 

18.  Distinction    when    Deposit  is  tracts. 

special.  24.   Account.     Nature  of  Action. 

19.  Illustrations  of  Application  of  25.   Debt. 

Statute  in  Special  Cases.  26.  Covenant. 

20.  Assumpsit,  for  what  it  lies.  27.  Suits  in  Admiralty. 

28.  Crimes. 

SEC.  15.  No  Limitation  at  Common  Law.  — At  common  law 
there  existed,  as  we  have  seen,  no  limitation  to  the  time  within 
which  an  action  ex  contractu  could  be  brought,  notwithstanding 
a  dictum  of  Bracton  to  the  contrary.1^)  In  torts,  indeed,  the 
tule  actio  personalis  moritur  cum  persona"1  prevailed,  and  on  the 
death  of  either  party  the  right  of  action  was  at  ah  end.  But  in 
actions  arising  out  of  contract  the  right  of  action  descended,  and 
might  exist  in  the  plaintiff's  representatives  against  the  repre- 
sentatives of  the  defendant  for  an  unlimited  time.  At  length, 
however,    the  statute  of  21  James   I.,  c.   16,   was  passed,   which 

1  "  Omncs  actiones  infra  calum  finem  habere  debenl  "  Bracton,  Lib.  2. 
There  is  an  old  maxim  to  the  contrary  of  this  sometimes  quoted,  — "a  right 
never  dies."  In  People  v.  Chapin,  104  N.  Y.  96,  it  was  held  that,  although  the 
statute  of  limitations  does  not  apply  to  the  issuing  of  a  writ  of  mandamus,  the 
writ  should  not  be  granted  after  the  period  fixed  by  the  statute  as  a  bar  to  an 
action  has  expired,  when  the  delay  is  unexplained  and  unaccounted  for;  and 
that  the  writ  may  also,  in  the  discretion  of  the  court,  be  denied  when  the  delay 
in  moving  it  is  unreasonable,  although  it  falls  short  of  the  lime  allowed  for 
commencing  actions. 

a  The  application  of  ( his  rule  is  much  diminished  by  statute  in  some  States. 

(a)  The    common-law    limitation    of  Si  L.  B.  R.  Co.    (L.  J.    L.).  47   Atl.  477. 

payment  of  an  award,  presumed  from  See  Magee  s\  Bradley,  54  N.J.  Eq.326; 

the   lapse  of   twenty  years,    cannot   be  Courtney  v.  Staudenmayer,  56  Kansas, 

Bet   Up  by  a   plea   in   bar,  as  a  statute  392;  James  v.  Life,  92  Va.  702;   Alston 

of    limitations,  but   the    proper  plea  is  v.    Hawkins,    105    N.    C.  3,  18  Am.  St. 

ihatof  payment.      Parisen  v.  New  York  Rep.  874,  and  note. 


§  1 6.]  APPLICATION    OF   TO    SIMPLE   CONTRACTS.  4/ 

remains  still  in  force  in  England,  and  substantially  in  this  country, 
at  least  so  far  as  section  3  of  such  act  1  is  concerned,  so  that  the 
construction  put  thereon  by  the  English  courts  aids  materially  in 
the  construction  of  our  statutes. 

Sec.  16.  Causes  of  Action  on  Simple  Contracts  embraced  by 
Statute  of  James  I.  — The  statute  of  James  has  been  the  subject 
of  much  judicial  criticism,  and  has  been  described  as  a  statute 
"worded  very  loosely."  2  But  the  circumstance  that  it  has  pre- 
vailed for  so  long  a  period  without  essential  modification  is  much 
in  its  favor,  although  its  beneficial  operation  is  largely  due  to  an 
extension  of  its  benefits  by  liberal  construction.  Thus,  although 
there  is  no  express  mention  of  the  action  of  assumpsit,  which  was 
at  the  period  of  its  enactment  the  most  important  of  all  actions, 
yet  as  it  was  clear  that  this  omission  was  unintentional,3  it  was 
construed  as  embracing  that  action  by  fair  intendment,  as  within 
the  reason  of  the  statute,  and  also  as  coming  under  the  head  of 
trespass  on  the  case.4  So,  too,  although  the  saving  clause  in 
cases  of  disability  does  not  in  terms  mention  any  actions  on  the 
case  except  actions  on  the  case  for  words,  yet  it  has  always  been 
construed  as  extending  to  all  actions  on  the  case,  from  the  mani- 
fest inconvenience  of  a  contrary  construction.5 

1  See  Appendix. 

!  Inglis  v.  Haigh,  8  M.  &  W.  769. 

3Piggolt  v.  Rush,  4  Ad.  &  EI.  912.  "  It  seems  to  be  hardly  disputed  that 
the  plaintiff  may  recover  if  assumpsil  for  unliquidated  damages  be  within  the 
proviso  in  the  seventh  section.  Indebitatus  assumpsit  is  held  to  be  so  in  Chand- 
ler v.  Vilett,  2  Saund.  120,  and  in  Crosier  v.  Tomlinson,  2  Mod.  71,  assumpsit 
is  said  to  be  included  in  trespass.  That  is  certainly  rather  strong.  Yet  if 
assumpsit  were  omitted  from  the  proviso,  the  omission  was  palpably  so  unin- 
tended that  the  courts  perhaps  were  justified  in  straining  the  language."  The 
other  judges,  Littledale,  Patteson,  and  Coleridge,  based  their  assent  on  the 
ground  that  they  could  not  overrule  the  cases,  and  intimated  that  if  this  had 
been  a  case  of  first  impression  the  rule  would  be  different. 

4  Harris  v.  Saunders  4  B.  &  C.  411;  Bacon's  Abr.,  tit.  Limitations  (E),  1 ; 
Leigh  v.  Thornton,  1  B.  &  Aid.  625;  Beatty  v.  Burnes,  8  Cranch  (U.  S.)  98; 
Chandler  v.  Vilett,  2  Saund.  120;  Haven  v.  Foster,  q  Pick.  (Mass.)  112;  Crosier 
v.  Tomlinson,  2  Mod.  71;  Baldro  v.  Tolmie,  1  Oregon,  176;  Williams  v.  Wil- 
liams, 5  Ohio,  444;  Maltby  v.  Cooper,  1  Morris  (Iowa)  59.  In  Phillips  v.  Cage, 
12  S.  &  M.  (Miss.)  141,  it  was  held  that  actions  of  assumpsit  upon  open  accounts 
are  not  embraced  under  the  words  "  actions  of  account  and  upon  the  case,"  but 
that  they  relate  only  to  special  actions  of  that  character. 

6  Parke,  B.,  in  Inglis  v.  Haigh,  8  M.  &  W.  780;  Chandler  v.  Vilett,  2  Saund. 
120. 


48  STATUTES    OF   LIMITATION.  [CHAP.   II. 

As  construed  by  the  courts,  this  section  is  comprehensive,  and 
comprises  nearly  all  simple  contracts,  or  causes  of  action  which 
fall  under  the  head  of  assumpsit.  Foreign  judgments,  ranking 
only  as  simple-contract  debts,  come  under  this  head;  1  so  also  do 
promissory  notes,  bills  of  exchange,  checks,2  and  all  written  con- 
tracts or  obligations  not  under  seal  or  of  record,3  as  well  as  all 
unwritten  or  parol  contracts  upon  which  an  action  of  assumpsit 
may  be  predicated.4  Actions  by  attorneys  to  recover  their  fees 
are  within  the  section ;  for  though  the  status  of  an  attorney  is 
"  of  record,"  yet  his  fees  are  not  of  record.5  But  the  lien  of  an 
attorney  on  deeds  in  his  possession  for  his  costs  may,  of  course, 
remain  after  the  statutory  period.6  The  rule  as  to  an  attorney's 
bill  may  be  said  to  be  that  it  is  subject  to  the  statute,  and  that  it 
only  becomes  due  so  that  the  statute  begins  to  run  thereon  from 
the  time  judgments  are  entered  and  executions  issued.7  In  other 
words,  so  long  as  anything  remains  to  be  done  by  him  to  protect 
the  interests  of  his  client  in  the  litigation  or  matter  out  of  which 
his  claim  arises,  his  claim  for  services  is  saved  from  the  operation 
of  the  statute.8     Actions  of  assumpsit  by  a  bankrupt's  assignees 

1  Dupleix  v.  De  Roven,  2  Vern.  540;  Harris  v.  Saunders,  4  B.  &  C.  411;  Hub- 
bell  v.  Coudrey,  5  Johns.  (N.  Y.)  132;  Bissell  v.  Hall,  n  id.  168;  Pease  v.  How- 
ard, 14  id.  479;  Hay  v.  Fisher,  2  M.  &  W.  722;  Walker  v.  Witter,  Doug.  1.  But 
in  Pennsylvania  it  has  been  held  that  a  plea  of  actio  non  accrevit  infra  sex  annos 
is  not  a  good  plea  when  the  judgment  is  founded  on  a  specialty.  Richards  v. 
Bickley,  13  S.  &  R.  (Penn.)  395. 

2  Chievly  v.  Bond,  4  Mod.  105;  Brust  v.  Barrett,  16  Hun  (N.  Y.)  409,  affirmed 
82  N.  Y.  300.  The  taking  of  a  note,  bill  of  exchange,  or  check  is  prima  facie 
evidence  of  pavment  of  a  debt  for  which  it  is  given,  but  does  not  necessarily 
operate  as  a  discharge  of  such  debt.  Wallace  v.  Agry,  4  Mass.  (U.  S.  C.  C.)  336; 
Lord  v.  Bigelow,  127  Mass.  1S5;  Amos  v.  Bennett,  125  id.  120;  Swett  v.  South- 
worth,  id.  439;  Graves  v.  Shulman,  59  Ala.  406;  Feamster  v.  Withrow,  12 
W,  Va.  6ll.  The  nature  of  the  transaction  and  what  transpired  at  the  time  is 
generally  conclusive  upon  this  question.  Cadiz  Bank  v.  Slemmons,  34  Ohio  St. 
142;  McKee  v.  Hamilton.  33  id.  7.  Bills  and  notes  are  not  such  matters  of 
account  as  are  referred  to  in  the  statute  under  the  head  of  "  merchant's 
accounts,"  but  are  rather  "  accounts  stated."     Chievly  v.  Bond,  4  Mod.  105. 

1  Mill-dam  Foundry  v.  Hovey,  21  Pick.  (Mass.)  417. 

4  Hall  v.  Hall,  8  N.  H.  129. 

6  Oliver  t.  Thomas,  3  Lev.  367. 

*  hi  re  Broomhead,  5  D.  &  S.  52. 

:  Bruyn  v.  Comstock,  56  Barb.  (N.  Y.)  9;  Adams  v.  Fort  Plain  Bank,  36  N.  Y. 
255:   Mygatt  v.  Wilcox,  45  id.  306. 

'Hale  V,  Ard,  48  Penn.  St.  22;  Lichty  v.  Hugus,  55  id.  434.  In  Fosters. 
J  Li  k.  4  Watts  (Penn.)  334,  it  was  held  that  the   statute  does  not  commence  to 


§   1 7.]  DEPOSITS.  49 

1 

were  held  within  the  section,  on  the  ground  that,  notwithstand- 
ing that  the  assignment  was  by  statute,  yet  the  assignees  could 
only  stand  in  the  bankrupt's  place,  and  have  what  right  and 
remedy  he  had.1  (a)  Money  lent  on  a  deposit  of  title-deeds  creates 
only  a  simple-contract  debt;  but  this  is  subject,  of  course,  to  the 
question  of  lien.a  The  liability  of  an  equitable  assignee  of  lease- 
holds for  the  covenants  thereon  is.  within  the  section.8  (/>) 

SEC.  17.  Deposits  with  Bankers,  within  Statute  of  James.  — 
The  ordinary  dealings  of  bankers  and  customers  also  fall  within 
the  section,  inasmuch  as  sums  paid  to  the  credit  of  a  customer 
with  his  banker,  though  usually  called  deposits,  are  in  truth  loans 
to  the  banker,4  the  money  paid  to  the  banker  becoming  at  once 
a  part  of  his  general  assets,  and  he  being  merely  a  debtor  for  the 
amount. (c)  In  fact,  money  deposited  with  a  banker  by  his  cus- 
tomer in  the  ordinary  way  is  money  lent  to  the  banker,  with  a 
superadded   obligation   that   it   is  to   be  paid  when  called  for  by 

run  against  an  attorney's  claim  so  long  as  the  debt  which  the  attorney  seeks  to 
collect  is  unpaid.  In  Coleman  v.  Whitney,  62  Vt.  123,  the  complainant  brought 
a  bill  in  equity  to  enforce  a  mortgage  which  was  given  to  secure  the  perform- 
ance of  an  agreement  for  her  supporl  during  life.  The  mortgage  was  given  by 
her  brother,  and  the  agreement  entered  into  twenty-seven  years  before  the 
action  was  broughl,  during  all  which  time  she  slept  upon  her  righls,  and  never 
called  upon  her  brother  to  carry  out  the  agreement;  nor,  although  she  lived  in 
his  family  for  about  eleven  years  after  the  agreement  was  made,  and  had  a 
settlement  with  him,  and  took  his  note  for  $800,  as  the  result  of  such  settlement, 
did  it  appear  that  the  subject  of  carrying  out  ihe  agreement  was  ever  referred 
to.  The  court  held  thai  the  statute  had  not  run  against  the  agreement,  and 
that  she  had  not  been  guilty  of  such  laches  as  defeated  her  remedy  thereon, 
upon  the  ground  that  there  was  no  breach  of  the  contract  until  she  had  called 
upon  her  brother  for  support. 

1  Bac.  Abr.  Lim.  (E),  1;  South  Sea  Co.  v.  Wymondsell,  3  P.  W.  144.     And  see 
Index,  S.  C.  Bankruptcy. 

2  Brocklehurst  v.  Jessop,  7  Sim.  438. 

3  Sanders  v.  Benson,  4  Beav.  450. 

4  Foley  v.   Hill,  1   Phill.  399;   Pott  v.  Clegg,  16  M.  &  W.  321;  Carr  v.  Carr,  1 
Mer.  541,  n.;   Devayne  v.  Noble,  id.  568. 

(a)  See  Rock  v.   Dennett,  155  Mass.  Barnes  v.  Glenton,  [1899]  r  Q.  B.  885. 

500.  See  Mellersh   v.  Brown,  45  Ch.  D.  225; 

(6)  Now,  in  England,  when  an  action  Re  Lake's  Trusts,  63  L.  T.  416;  M'Don- 

is  brought  to  recover  a  simple  contract  nell  v.  Fitzeerald,  [1897]  1  I.  R.  556. 
debt  charged  on  land,  the  limitation  is         (c)  See  Atkinson  v.  Bradford  Benefit 

that  imposed  by  the  statute  of  James,  Building    Society,    25    Q.    B.    D.    377; 

and  is  not  enlarged  to  twelve  years  bv  Miller  v.  Dell,  [1891]  1  Q.  B.  46S;  Tidd 

the  Real  Property  Limitation  Act,  1874.  v.  Overell,  [1893]  3  Ch.  154. 

[stats    of  lim.  —  4] 


50  STATUTES   OF    LIMITATION.  [CHAP.   II. 

check;  '  and  if  it  remains  six  years  without  payment  of  principal 
or  interest,  the  right  to  recover  it  in  England  is  held  to  be 
barred. (a)  This  is  the  case  even  though  there  is  an  agreement 
to  pay  interest,  which  it  is  the  banker's  duty  to  enter  to  his 
customer's  credit;2  and  it  is  held  that  notwithstanding  that  the 

1  VVray  v.  Tuskegee  Ins.  Co.,  34  Ala.  58;  Robinson  v.  Gardiner,  18  Gratt. 
(Va.)  509.  Deposits  made  with  bankars  may  be  divided  into  two  classes: 
1.  Those  in  which  the  bank  becomes  bailee  of  the  depositor,  the  title  to  the  thing 
deposited  remaining  with  the  latter;  and,  2.  That  kind  peculiar  to  banking 
business,  in  which  the  depositor,  for  his  own  convenience,  parts  with  the  title 
to  his  money,  and  loans  it  to  the  banker,  and  the  latter,  in  consideration  of  the 
loan  of  the  money,  and  the  right  to  use  it  for  his  own  profit,  agrees  to  refund 
the  same  amount,  or  any  part  thereof,  on  demand.  Marine  Sank  v.  Fulton 
Bank,  2  Wall.  (U.  S.)  252.  In  the  case  of  a  general  deposit,  banks  are  author- 
ized 10  use,  in  discounting,  etc.,  the  money  deposited,  as  a  temporary  loan, 
liable  to  be  withdrawn  at  any  moment  by  the  depositor,  the  deposit  being  a  debt 
due  from  the  bank  to  ihe  depositor,  which  raises  an  implied  assumpsit  for  its 
repayment;  in  the  case  of  a  special  deposit  they  have  no  such  right.  Foster  v. 
Essex  Bank,  17  Mass.  479:  Matter  of  Franklin  Bank,  J  Paige  (N.  Y.)  24.9;  Bank 
of  Kentucky  v.  Wister,  2  Pet.  (U.  SO31S;  Albany  Commercial  Bank  v.  Hughes, 
17  Wend.  (N.  Y.)  94;  Coffin  v.  Anderson,  4  Blackf.  (Ind.)  395;  Dawson  v.  Real 
Estate  Bank,  5  Aik.  283.  In  the  case  of  a  general  depositor,  the  money, 
checks,  or  bills  which  he  deposits  become  the  property  of  the  bank,  and  he 
becomes  a  creditor.  If  they  are  stolen,  lost,  or  destroyed,  or  become  of  no 
value,  the  bank  sustains  the  loss,  and  he  is  still  a  general  creditor,  having 
no  claim  upon  the  money  or  bills  deposited,  which  the  officers  may  use  as  they 
please,  for  the  general  purposes  of  the  institution.  There  is  an  implied  assent 
on  the  part  of  the  depositor,  and  the  agents  of  the  institution  are  legally  author- 
ized to  issue  bills  and  discount  notes  on  the  credit  of  such  deposits.  The 
depositor,  therefore,  has  no  valid  claim  to  be  paid  in  preference  to  the  bill-hold- 
ers, who  are  also  general  creditors.  Matter  of  Franklin  Bank,  1  Paige  (N.  Y.) 
249;   Eills  v.  Linck,  3  Ohio  St.  66. 

2  In  Pott  v.  Clegg,  16  M.  &  W.  321,  Pollock,  C.  B.,  in  discussing  this  question, 
said:  "  I  entirely  concur  in  the  judgment  of  the  rest  of  the  court,  that  the  set- 
off in  the  present  case  cannot  be  made  available;  for  even  assuming  that  thi> 
account  ought  not  to  be  treated  as  money  lent,  but  that  there  are  peculiar  cir- 
cumstances in  a  banking  account  which  distinguish  it  from  any  other,  yet  none 
of  those  circumstances  appear  on  these  pleadings,  so  as  to  justify  us  in  con- 
sidering this  case  differently  from  what  we  should  if  it  were  an  ordinary  case 
of  money  lent;  and  I  therefore  concur  with  the  rest  of  the  court,  that  the  present 
rule  must  be  discharged.  At  the  same  time,  I  must,  certainly  with  considera- 
ble doubt  and  diffidence,  confess  the  hesitation  of  my  own  opinion,  whether 
there  is  not  special  contract  between  the  banker  and  his  customer  as  to  the 
money  deposited,  which  distinguishes  it  from  the  ordinary  case  of  a  loan  for 
money.  It  seems  to  me  that  it  is  a  question  for  the  jury."  Barons  Parke, 
Alderson,  and   Rolfe  were  the  other  members  of  the  court.     See  Thompson  v. 

(a)  Tidd  v.  Overcll,  [1893]  3  Ch.  154. 


§  1 8.  J  SPECIAL   DEPOSIT.  5  I 

debt  of  a  bank  to  customers  is  one  of  a  special  nature,  for  which 
no  action  can  be  brought  without  a  previous  demand,  yet 
the  statute  runs  within  the  period  fixed  for  the  limitation 
of  such  claim  if  no  demand  is  made.1  But  it  appears  to  be 
that  an  action  will  not  lie  against  a  bank  for  a  deposit,  until  after 
a  demand  has  been  made  therefor.2  The  engagement  of  a  bank 
with  its  depositors  is  not  to  pay  absolutely  and  immediately,  but 
when  payment  shall  be  required  at  the  banking-house,  and  there- 
fore it  is  not  in  default  or  to  respond  in  damages  until  demand 
and  refusal;  nor  does  the  statute  of  limitations  begin  to  run  until 
demand  has  been  duly  made.3  But  if  the  bank  has  rendered  an 
account  claiming  the  deposit  as  its  own,4  or  if  it  has  suspended 
payment  and  closed  its  doors  against  its  creditors,5  or  has  done 
any  act  that  operates  as  a  notice  of  its  intention  not  to  pay  the 
deposit,  a  demand  is  dispensed  with,  and  the  statute  begins  to 
run  from  the  date  of  such  act.6  In  an  English  case,  Pollock,  C. 
B.,  suggested  a  doubt  whether  the  question  was  not  one  for  jury 
to  decide  whether  money  so  lent  were  a  loan  or  deposit.7 

SEC.  1 8.  Distinction  when  Deposit  is  special.  —  The  case  is 
different  where  the  banker  has  notice  that  the  fund  is  a  trust  fund, 
even  though  he  has  no  notice  what  are  the  particular  trusts,8  or 
where  money  is  deposited  in  a  sealed  beg,  or  is  otherwise  ear- 
marked and  recoverable  in  specie.9  The  liability  of  an  attorney 
for   money    of   his   client   which   has  come   to   his  hands,  in  the 

Bank  of  North  America,  82  N.  Y.  r,  where  the  statute  is  held  not  to  begin 
running  on  a  deposit  until  a  demand  has  been  made.  See  also  Foley  v.  Hill, 
supra.  In  the  latter  case  there  was  no  charge  in  the  bill  that  the  bankers  had 
fraudulently  or  through  gross  carelessness  omitted  their  duty  to  enter  the 
interest. 

1  Pott  v.  Clegg,  16  M  &  W.  321,  325,  quoting  Pothier  on  Contracts,  by  Evans, 
p.  126. 

'Johnson  v.  Farmers  Bank.  1  Harr.  (Del.)  117.  See  Downes  v.  Bank  of 
Charlestown,  6  Hill  (N.  Y.)  297. 

8Girard  Bank  v.  Bank  of  Penn  Township,  39  Penn.  St.  92;  Adams  v.  Orange 
County  Bank,   17  Wend.  (N.  Y.)  514. 

4  Bank  of  Missouri  v.  Benoist,  10  Mo.  519. 

8  Watson  v.   Phenix  Bank,  8  Met.  (Mass.)  217. 

8  Farmers'  Bank  v.  Planters'  Bank,  10  Q.  &  J.  (Md.)422.  See  Bank  of  British 
North  America  v.  Merchants'  Nat.  Bank,  91  N.  Y.  106. 

1  Pott    V.   Clegg,  supra. 

8Bridgman  v.  Gill,  24  Beav.  302. 

"Carr  v.  Carr,  1  Mer.  541,  n.;  Devayne  v.  Noble,  id.  568. 


52  STATUTES    OF    LIMITATION.  [CHAP.   II. 

absence  of  fraud,  is  simply  that  of  an  agent  or  factor,  and  creates 
a  simple-contract  debt  only.1  The  rule  is  that  where  an  attorney 
collects  money  for  his  client,  the  statute  begins  to  run  from  the 
time  of  its  receipt,  and  that,  too,  without  regard  to  notice  to,  or 
a  demand  by,  the  client.2 (a)  But  where  the  attorney  has  fraudu- 
lently concealed  the  fact  that  the  claim  is  collected  from  his 
client,  as  if  upon  inquiry  he  informs  him  that  it  has  not  been  col- 
lected, when  in  fact  it  has  been,  the  statute  begins  to  run  from 
the  time  when  the  client  discovers  the  fraud.  But  where  the 
plaintiff  claimed  against  his  attorney  for  money  received  on  his 
behalf,  the  statute  was  held  not  to  be  a  bar  to  the  summary  juris- 
diction of  the  court.3  An  action  for  mesne  profits  is  held  to  be 
within  the  act.4 

SEC.  19.  Illustrations  of  Application  of  Statute  in  Special  Cases. 
Money  due  by  virtue  of  a  custom  is  within  this  act.5  So,  too,  is 
an  action  grounded  on  a  by-law  made  by  a  company  under  its 
charter;  on  the  ground,  apparently,  that  although  in  one  sense  a 
by-law  is  grounded  on  the  statute  or  charter  which  authorizes  it, 
yet  it  only  operates  against  an  individual  by  virtue  of  his  own 
assent.6  Except  where  otherwise  provided,  actions  founded 
directly    upon    a    statute,    a   matter   of   record,    or,   in   fact,    any 

'  McCoon  v.  Galbraith,  29  Penn.  St.  293;  In  re  Hindmarsh,  1  Dr.  &  Sw.  129; 
Burdick  v.  Garrick,  5  Ch.  233;   Waison  v.  Woodman,  L.  R.  20  Eq.  731. 

'Campbell  v.  Boggs,  48  Penn.  St.  524;  Alexander  7\  Westmoreland  Bank,  1 
id.  395;  Fleming  v.  Culbert,  46  id.  498;  Glenn  v.  Cuttle,  2  Grant's  Cas.  (Penn.) 
273.  Thus,  where  a  claim  had  been  sent  by  an  attorney  to  an  agent  in  ano'her 
Stale,  and  upon  inquiry  by  his  client  he  informed  him  thai  the  claim  was  not 
collectible,  when  in  fact  it  had  been  collected  by  such  agent,  it  was  held  that 
the  statute  did  not  begin  to  run  until  the  time  of  the  discovery  of  Ihe  fraud, 
and  that,  too,  whether  the  attorney  was  or  was  not  acting  in  good  faith  when  he 
gave  the  answer.  Morgan  v.  Tener,  83  Penn.  St.  305.  See  also  Wickersham 
v.  Lee    id.  416. 

*  Ex  parte  Sharp,  W.,  W.  &   D.  354. 

4  Reade  v.  Reade,  5  Ves.  749.  In  Mitchell  v.  Mitchell,  10  Md.  234.  the  court 
were  equally  divided  upon  the  question,  and  the  court  below  having  held  that 
the  statute  was  a  bar,  the  judgment  stood.  See  Morgan  v.  Varick,  S  Wend. 
(N,  V.)  587,  where  the  doctrine  stated  in  the  text  was  held. 

'  Mayor  of  London  v.  Gorry,  2  Lev.  174;  s.  c,  as  Cily  of  London  v.  Goree.  1 
Writ    298;   Tobacco  Co.  v.  Loder,  16  Q.  B.  765. 

*  Feltmakers'  Co.  v.  Davis,  1  Strange,  385;  Barber  Surgeons  of  London  v. 
Pel  on,  2  Lev.  252. 

(n  5e  I)  lUfflas  v.  Corrv,  4<>  Ohio  518;  Wilder  v.  Secor,  72  Iowa,  161;  10 
Si.    ut.  Sfhofield    v.    Woolicy,  98   Ga.      Harvard   L.  Rev.  309. 


§  I9-J  SPECIAL   CASES.  53 

specialty,  arc  not  within  the  statute;  '  but  this  does  not  apply  to 
actions  only  indirectly  founded  upon  a  statute 2  or  specialty. 
Thus,  where  an  action  for  use  and  occupation  lies  for  the  recovery 
of  the  use  of  premises,  although  there  is  a  lease  under  seal,  the 
statute  applies.3  So,  where  a  surety  upon  a  bond  is  compelled  to 
pay  money  thereon  for  his  principal,  the  statute  runs  upon  his 
claim  therefor,  although  it  arose  out  of  his  obligation  under  a 
specialty.4  Where  a  contract  under  seal  is  so  executed  as  not  to 
authorize  a  party  injured  by  its  breach  to  maintain  an  action 
thereon,  he  may  bring  assumpsit,  and  set  up  the  contract  by  way 
of  inducement.5  So,  where  the  terms  of  a  sealed  instrument 
have  been  varied  by  parol,  the  instrument  is  thereby  reduced  from 
a  specialty  to  a  simple  contract,  and  assumpsit  lies  for  its  breach, 
and  consequently  the  statute  applies.6  The  statute  applies  to  a 
set-off,7  any  trust  that  is  the  ground  of  an  action  at  law,8  to  town 

1  Cork  &  Bandon  Ry.  Co.  v.  Goode,  13  C.  B.  286.  Where  private  property 
has  been  damaged  by  a  public  improvement,  and  the  statute  has  given  a 
remedy  therefor,  the  statute  of  limitations  does  not  apply,  Hannum  v.  West 
Chester,  63  Penn.  St.  475;  nor  does  the  statute  apply  to  a  statutory  proceeding 
for  the  assessment  of  damages  for  the  construction  of  a  railroad,  McClinton  v. 
Pittsburg,  etc.,  R.  R.  Co.,  66  id.  404;  Delaware,  etc.,  R.  Co.  v.  Burson,  61  id. 
36g;  nor  to  a  municipal  assessment.  Magee  v.  Com.,  46  id.  35S;  Council  v. 
Moyamensing,  2  id.  224.  But  if  a  party  lesorts  to  his  common-law  remedy  for 
such  damages  the  statute  applies.  McClinton  v.  Pittsburg,  etc.,  R.  Co.,  ante. 
In  Knapp  v.  Clark,  30  Me.  244,  it  was  held  that  an  action  on  a  judgment 
recovered  under  the  Mill  Act  was  not  within  the  statute. 

5  South  Sea  Co.  v.  Wymondsell,  3  P.  Wms.  144.  Thus,  an  action  of  assump- 
sit lies  upon  an  implied  promise  to  discharge  an  obligation  created  by  statute, 
Bath  v.  Freeport,  5  Mass.  326;  unless  some  other  remedy  is  expressly  given, 
Hillsborough  County  v.  Londonderry,  43  N.  H.  451;  Watson  v.  Cambridge,  15 
Mass.  286. 

3Conover  v.  Conover,  1   N.  J.  Eq.  403. 
4Penniman  v.  Vinton,  4  Mass.  276. 

6  Hitchcock  v.  Lukens,  8  Port.  (Ala.)  333. 

6Hydeville  Co.  v.  Eagle  R.  &  Slate  Co.,  44  Vt.  395;  Mill-dam  Foundry  v. 
Hovey,  21  Pick.  (Mass.)  417;  Munroe  v.  Perkins,  9  id.  298. 

'Nolin  v.  Blackwell,  31  N.  J.  L.  170. 

8  Wisner  v.  Barnet,  4  Wash.  (U.  S.)  631.  The  effect  of  the  statute  upon  trusts 
will  be  made  the  subject  of  a  separate  chapter;  but  it  may  be  stated  here  that 
the  rule  that  the  statute  does  not  apply  to  cases  where  the  technical  relation  of 
trustee  and  cestui  que  trust  exists,  only  applies  in  cases  over  which  courts  of 
equity  have  exclusive  jurisdiction,  Cocke  v.  M'Ginnis,  M.  &  Y.  (Tenn.)  361;  nor 
where  the  trustee  disclaims  the  trust,  Walker  v.  Walker,  16  S.  &  R.  (Penn.)  379; 
nor  to  implied  trusts,  Wilmerding  v.  Russ,  33  Conn.  67;  but  to  open,  continu- 
ing trusts  the  statute  has  no  application,  so  long  as  the  trust  continues.  Ibid.; 
Johnston  v.  Humphreys,  14  S.  &  R.  (Penn.)  394;  Seymour  v.  Freer,  8  Wall.  (U. 


$4  STATUTES   OF   LIMITATION.  [CHAP.   II. 

or  city  orders,1  to  a  legacy  not  charged  on  land,2  to  a  vendor's 
lien,8  to  actions  against  a  sheriff  for  money  collected  on  execu- 
tion,4 and,  indeed,  to  every  claim  or  demand  that  may  be  made 
the  ground  of  an  action  of  assumpsit.  In  this  country,  in  all 
of  the  States,  the  statute  expressly  or  by  fair  inference 
embraces  the  action  of  assumpsit,  as  in  Maine,5  Vermont,6 
Massachusetts,7  Connecticut,  New  York,  Delaware,  Michigan, 
Wisconsin,  Missouri,  Arkansas,  and  Florida;  while  in  Rhode 
Island,  New  Jersey,  Pennsylvania,  Maryland,  Virginia,  North 
Carolina,  South  Carolina,  Georgia,  Alabama,  Mississippi,  Ten- 
nessee, Kentucky,  Ohio,  Indiana,  Illinois,  Iowa,  California,  Ore- 
gon, Minnesota,  Kansas,  Nevada,  and  Nebraska,  the  same  class 
of  actions  is  embraced  under  the  head  of  debt,  case,  or  actions 
upon  written  or  unwritten  contracts.  In  Louisiana  all  personal 
actions  are  barred  after  thirty  years; 8  while  in  Texas  the  statute 
embraces  written  contracts,  and  provides  that  they  shall  be  barred 
in  four  years,  and  actions  of  debt  upon  contracts  not  in  writing, 
in  two  years,  which  includes  all  that  class  of  actions  usually 
embraced  under  the  head  of  assumpsit.  Thus  the  construction 
put  upon  the  statute  21  James  I.  by  the  English  courts  is  import- 
ant in  the  construction  of  our  own,  because,  while  it  is  "loosely 
worded,"  the  same  is  true  of  some  of  our  own  statutes,  and  in 
nearly  all  of  them  there  are  many  matters  left  to  be  supplied  by 
intendment.  In  order  to  ascertain  to  what  class  of  actions  the 
statute  applies,  it  is  necessary  to  ascertain  what  classes  of  claims 
may  be  the  foundation  of  assumpsit  or  debt. 

Sec.  20.  Assumpsit,  for  what  it  lies.  —  The  action  of  assumpsit, 
as  it  formerly  existed  as  an  active  remedy,  and  as  it  now  exists 
in  all  the  States  in  substance  although  not  in  form,  was  compre- 
ss 202.  Where,  however,  the  fiduciary  relation  ceases,  the  relation  of  debtor 
and  creditor  exists,  and  the  statute  applies  from  that  time.  Bones's  Appeal,  27 
Penn.  Si.  492;  Bull  v.  Towson,  4  W.  &  S.  (Penn.)  557.  See  chapter  on  Trusts. 
Constructive  trusts  are  within  the  statute.     Ashurst's  Appeal,  60  Penn.  St.  290. 

1  People  v.  Lincoln,  41  Mich.  415. 

3  Souzer  v.  De  Meyer,  2  Paige  (N.  Y.)  574;  American  Bible  Society  v.  Hebard, 
41  N.  Y.  619. 

"  Borst  z.  Corey,  15  N.  Y.  505. 

4  Elliot  v.  Cronk,  13  Wend.  (N.  Y.)  35. 

*  Maine  Rev.  Stats.,  c.  81,  §  82. 

*  Vt.  Stats.  (1894),  $  1199. 
1  Pub.  Stats.,  c.  197,  §  1. 
•Griffith's  Annual  Register,  680. 


§20.] 


ASSUMPSIT. 


55 


hended  under  the  head  of  trespass  on  the  case,  and  embraces  all 
causes  of  action  for  the  recovery  of  damages  for  the  breach  of 
any  simple  contract,  oral  or  written,  express  or  implied,1^)  as 
checks,2  promissory  notes,3  payable  either  in  money  or  specific 
articles,4  as  bills  of  exchange,5  interest  coupons  upon  municipal 
or  other  bonds,6  an  award  not  under  seal,7  any  acknowledgment 
of  an  indebtedness,  certificates  of  deposit,8  for  work  done  under 
a  special  contract  under  seal,  but  not  according  to  the  covenant,9 
or  when  the  contract  has  been  rescinded,10  on  the  promise  of  a 
grantor  to  refund  the  purchase-money  for  land  on  account  of  a 
failure  of  title,11  to  recover  for  goods  sold  and  delivered,12  for 

1  Carter  v.  Hope,  10  Barb.  (N.  Y  )  1S0;   Howes  v.  Austin,  35  111.  396. 

2  Hinsdale  v.  Bank  of  Orange,  6  Wend.  (N.  Y.)  S4;  Hughes  v.  Wheeler,  8  Cow. 
(N.  Y.)  77;  Woods  v.  Schroeder,  4  H.  &  J.  (Md.)  276;  Ellsworth  v.  Brewer,  1: 
Pick.  (Mass.)  320;  Tenney  v.  Sandborn,  5  N.  H.  557;  Eagle  Bank  v.  Smith,  5 
Conn.  71. 

3  Payne  v.  Couch,  1  Greene  (Iowa)  64;  Stever  v.  Lamoure,  H.  &  D.  (N.  Y.) 
352;  St.  Louis,  etc.,  Co.  v.  Souland,  8  Mo.  665. 

4  Farmers',  etc.,  Bank  v.  Payne,  25  Conn.  444. 
6  Johnson  v.  Stark,  24  111.  25. 

6  Brady  v.  Mayor,  1  Barb.  (N.  Y.)  584;  Bates  v.  Curtis,  21  Pick.  (Mass.)  247. 

T  Morse  v.  Allen,  44  N.  H.  33;  Carver  v.  Hayes,  47  Me.  257. 

8  Swift  v.  Whitney,  20  111.  144;  State  Bank  v.  Corwith,  6  Wis.  551. 

*  Canby  v.  Ingerscl,  4  Blackf.  (lnd.)  493. 

10  Bassett  v.  Sanborn,  9  Cush.  (Mass.)  58;  Hill  v.  Green,  4  Pick.  (Mass.)  114. 

11  Miller  v.  Watson,  4  Wend.  (N.  Y.)  267. 

12  Edmunds  v.  Wiggin,  24  Me.  505;  Davis  v.  Sanders,  11  N.  H.  259;  Kingman 
v.  Hotaling,  25  Wend.  (N.  Y.)  423. 


(a)  An  implied  assumpsit  arises  when 
money  is  due  from  the  defendant  to  the 
plaintiff  ex  cequo  et  bono,  and  may  be 
recovered  in  an  action  for  money  had 
and  received.  An  action  by  a  vendee 
against  the  vendor  to  recover  what  the 
former  has  already  paid,  on  the  lalter's 
failure  to  convey  as  required  by  a  writ- 
ten contract  of  sale,  is  implied  assump- 
sit, and  not  special  assumpsit  under  a 
limitation  clause  as  to  instruments  in 
writing.  Thomas  v.  Pacific  Beach  Co., 
115  Cal.  136.  In  McCarthy  v.  Mount 
Tecarte  Land  &  Water  Co.,  in  Cal. 
328,  340,  the  court  used  this  language 
upon  this  subject :  "  The  cause  of  ac- 
tion is  not  upon  a  contract  founded 
upon  an  instrument  in  writing,  within 
the  meaning  of  the  Code,  merely  be- 
cause it  is  in  some  way  remotely  or  in- 
directly connected  with  such  an  instru- 
ment, or  because  the  instrument  would 
be   a  link  in  the  chain  of  evidence  es- 


tablishing the  cause  of  action.  In 
order  to  be  founded  upon  an  instru- 
ment in  writing,  the  instrument  must 
itself  contain  a  contract  to  do  the  thing 
for  the  non-performance  of  which  the 
action  is  brought."  See  also  Lattin  v. 
Gillette,  95  Cal.  317;  Todd  v.  Board  of 
Education,  122  Cal.  106;  Patterson  v. 
Doe,  130  Cal.  333;  Galveston  v.  Guar- 
anty Trust  Co.,  107  Fed.  Rep.  325.  An 
action  founded  upon  a  written  agree- 
ment to  pay  a  judgment  is  not  founded 
upon  the  judgment,  but  upon  the  writ- 
ten contract.  Hawk  v.  Barton,  130 
Cal.  654. 

Upon  a  sale  of  goods,  by  written 
order  therefor,  if  it  contains  no  promise 
to  pay,  the  cause  of  action  is  not  based 
thereon,  but  upon  the  simple  fact  of 
the  sale  and  delivery  of  the  goods. 
Voelcker  v.  McKey  (Tex.  Civ.  App.), 
60  S.  W.  798.  See  also  Dwight  v.  Mat- 
thews, (id.)  id.  805. 


56  STATUTES    OF    LIMITATION.  [CHAP.    II. 

services  rendered  on  express  or  implied  request,1  for  a  breach  of 
warranty,  express  or  implied,-  for  the  breach  of  a  contract  of 
bailment,3  for  a  subscription  to  the  stock  of  a  corporation;4  for 
the  refusal  of  a  corporation  to  issue  to  the  owner  of  stock  a  certifi- 
cate thereof,  or  to  recognize  his  rights  as  owner  thereof,5  and  for 
dividends  due  upon  stock,6  for  a  pecuniary  legacy  not  made  a 
charge  upon  lands;7  and  it  seems  that  it  lies  against  a  devisee  of 
land  charged  with  the  payment  of  a  legacy  or  annuity  when  the 
obligation  to  pay  becomes  complete.8  So,  too,  it  lies  for  the  pur- 
chase-money agreed  to  be  paid  for  land,9  for  the  recovery  of 
money  paid  for  the  conveyance  of  land  to  which  the  grantor  had 
no  title  or  no  power  to  convey,10  or  under  an  agreement  to  convey 
land,  but  which  the  payee  refuses  or  is  unable  to  convey;11  and 
generally  for  money  paid  upon  a  consideration  that  has  failed, 
whether  it  was  paid  under  a  simple  contract  or  specialty,12  and  for 

1  Janes  v.  Buzzard.  Hempst.  (U.  S.)  240.  In  Watchman  -'.  Crook,  5  G.  &  J. 
(Md.)  239,  it  was  held  that  assumpsit  lies  for  work  done  under  a  contract  under 
seal,  though  not  according  to  the  terms  of  the  contract,  if  the  work  is  accepted; 
but  in  such  a  case  the  action  is  for  the  value  of  the  services,  and  not  upon  the 
contract  itself. 

2  Evertson  v.  Miles,  6  Johns.  (N.  Y.)  138;  Kimball  v.  Cunningham,  4  Mass. 
505;  Byers  v.  Bostwick,  2  Mill's  (S.  C.)  Const.  75;  Rew  v.  Barber,  3  Cow. 
(N.  Y.)  272. 

3  Bank  of  Mobile  v.  Huggins,  3  Ala.  206. 

*  Rensselaer,  etc..  Plank  Road  Co.  v.  Barton.  16  N.  Y.  457,  n.;  Ogdensburgh, 
etc.,  R.  R.  Co.  v.  Frost,  21  Barb.  (N.  Y.)  541;  Dayton  v.  Borst,  31  N.  Y.  435; 
Barrington  v.  Pittsburg,  etc.,  R.    R.  Co.,  34  Penn.  St.  358. 

s  Wyman  v.  Am.  Powder  Co.,  8  Cush.  (Mass.)  168,  Gray  v.  Portland  Bank,  3 
Mass.  364;  Sargent  v.  Franklin  Ins.  Co.,  8  Pick.  (Mass.)  90. 

6  Ellis  v.  Essex  Merrimack  Bridge,  2  Pick.  (Mass.)  243. 

'Woodruff  v.  Woodruff,  3  N.  J.  L.  552;  Clark  v.  Herring.  5  Binn.  (Penn.)  33; 
Goodwin  ;/.  Chaffee,  4  Conn.  163;  Knapp  v.  Hanford,  6  id.  170;  Cowell  v. 
Oxford,  6  N.  J.  L.  432. 

"Swasey  v.  Little,  7  Pick.  (Mass.)  296;  Adams  v.  Adams,  14  Allen  (Mass.)  65; 
Sheldon  v.  Purple,  15  Pick.  (Mass.)  528. 

9Oneale  v.  Lodge,  3  H.  &  M.  (Md.)  433;  Shephatd  v.  Little,  14  Johns.  (N.  Y.> 
210;  Bowen  v.  Bell,  19  id.  338;  Wood  v.  Gee,  3  McCord  (S.  C.)  421.  See  Gallup 
v.  Bernd,  132  N.  Y.  370. 

"'Shearer  v.  Fowler,  7  Mass.  31;  Claflin   v.  Godfrey,  21  Pick.  (Mass.)  1. 

"  Parker  v.  Tainter,  123  Mass.  185;  White  v.  Wieland,  109  id.  291;  Williams 
v.  Bemis,  ro8  id.  91;  Dix  v.  Marcy,  116  id.  416. 

"  Williams  v.  Reed,  5  Pick.  (Mass.)  482;  Lawrence  v.  Carter,  16  id.  12;  Arthur 
v.  Saunders,  9  Port.  (Ala.)  626.  Thus,  money  paid  for  insurance  when  the 
policy  never  attached.  Hemmenway  v.  Bradford.  14  Mass.  121;  nor  under  a 
deed  which  the  person  executing  had  no  authority  to  make,  Claflin  v.  Godfrey, 
21  Pick.  (Mass.)  1 ;  nor  for  freight  or  passage  money  when  the  voyage  is  broken 


§  20.]  ASSUMPSIT.  57 

money  paid  under  false  and  fraudulent  representations,1  by  mis- 
take.2 It  lies  to  recover  an  account  stated,3  and  also  to  recover  a 
final  balance  due  from  one  partner  to  another  growing  out  of  a 
settlement  of  the  business  of  the  firm,4  on  a  foreign  judgment,5 
for  money  accruing  under  a  statute,0  by  one  co-tenant  against 
another  who  has  received  more  than  his  share  cf  the  profits  from 
the  common  property,7  and  in  all  instances  where  book-account 
lies,  when  this  remedy  is  given  by  statute.8 

In  very  many  of  the  States  there  is  a  general  provision  in  the 
statutes  limiting  the  right  to  bring  an  action  of  any  kind  after 
the  lapse  of  a  certain  period.  That  is,  after  making  special  pro- 
vision for  the  barring  of  certain  classes  of  claims,  there  is  a  pro- 
vision that  all  other  actions  shall  be  brought  within  a  certain  time. 
And  where  that  provision  exists  of  course  all  classes  of  actions, 
except  those  which  are  specifically  provided,  in  the  statute,  are 
embraced  under  this  head,  and  no  question  can  arise  as  to  the 
applicability  of  the  statute.  But  in  the  States  where  no  such 
general  provision  exists,  questions  often  arise  as  to  whether 
certain  classes  of  actions  are  embraced  under  any  of  the  special 
heads  covered  by  the  statute.  Thus,  in  Tennessee,  it  is  held, 
that  the  statute  does  not  apply  to  an  action  brought  by  a  person 
in  possession  of  land  to  set  up  a  lost  deed,  the  reason  being  that 
the  suit  is  not  for  the  recovery  of  land.9 

In  Minnesota,  it  is  held  that  the  statute  does  not  apply  to  pro- 
ceedings to  enforce  the  payment  of  taxes.10 

And  in  Kentucky,  it  is  held,  that  it  has  no  application  to  pro- 
ceedings brought  to  coerce  an  assessment  of  property  for  taxation, 
the  reason  in  the  latter  case  being  that  no  cause  of  action  arises 
until  the  assessment  is  made.     And  it  may  be  said  generally,  that 

up  by  a  peril  of  the  sea  or  otherwise.  Chase  v.  Alliance  Ins.  Co.,  9  Allen 
(Mass.)  311, 

1  Dana  v.  Kemble,  17  Pick.  (Mass.)  545. 

'Scott  v.  Warner,  2  Lans.  (N.  Y.)  49;  Kingston  Bank  v.  Eltinge,  40  N.  Y.  391; 
Renard  v.  Fiedler,  3  Duer  (N.  Y.)  318. 

3  Hoyt  v.  Wilkinson,  10  Pick.  (Mass.)  31;  Dunbar  v,  Johnson,  108  Mass.  519. 

*  Wilby  v.  Phinney,  15  Mass.  116. 

'Buttrick  v.  Allen,  8  Mass.  273. 

'Pawlel  v.  Sandgate,  19  Vt.  621,  unless  the  statute  provides  another  remedy. 

'Brigham  v.  Eveleth,  9  Mass.  538;  Jones  v.  Harraden,  id.  540,  n. 

8  Edwards  v.  Nichols,  3  Day  (Conn.)  16. 

"Anderson  v.  Akard,  15  Lea  (Tenn  )  1S2. 

10  Brown  County  v.  Wynona,  etc..  Land  Co.,  38  Minn.  397. 


58  STATUTES    OF   LIMITATION.  [CHAP.   II. 

the  statute  has  no  application  where  a  contract  is  continuing,  as 
to  a  contract  for  the  support  of  a  person  during  life,  the  reason 
being  that  so  long  as  the  person  lives  the  breaches  of  the  contract 
will  continue.1  (a) 

Sec.  21.  For  Torts,  Assumpsit  lies,  when.  —  Without  multiply- 
ing instances,  generally  assumpsit  lies  for  the  breach  of  any 
simple  contract,  and  in  all  cases  where  a  contract  or  promise 
exists  by  express  act  of  the  parties,  or  where  the  circumstances 
are  such  that  the  law  will  imply  a  promise;  and  it  may  be  said 
that  under  this  head  a  recovery  may  be  had  for  tortious  acts, 
properly  embraced  under  the  head  of  actions  ex  delicto,  in  all 
those  cases  where  from  the  circumstances  of  the  case  the  law  will 
imply  a  promise  on  the  part  of  the  wrongdoer  to  reimburse  the 
party  injured  by  his  act.(^)  The  party,  under  such  circum- 
stances, may  elect  to  waive  the  tort  and  sue  in  assumpsit ;  (c) 
especially  where  a  person  has  wrongfully  or  unlawfully  obtained 
the  goods  of  another  and  sold  them,2  or  converted  them  to  his 
own  use,  so  that  they  cannot  be  returned  in   stato  qno.z     Thus, 

1  Riddle  v.  Beattie,  77  Iowa,  168. 

'Bank  of  North  America  v.  M'Call.  4  Binn.  (Penn.)  371;  Willet  v.  Willet,  3 
Watts  (Penn.)  277;  Stockett  v.  Watkins,  2  G  &  J.  (Md.)  326;  Sanders  v.  Hamil 
ton,  3  Dana  (Ky.)  552;  Morrison  v.  Rogers,  3  111.  8r7;  Sturtevant  v.  Waterbury, 
2  Hall  (N.  Y.)  44.9;  Harpending  v.  Shoemaker,  37  Barb.  (N.  Y.)  270;  Berly  v. 
Taylor,  5  Hill  (N.  Y.)  577. 

3  Goodenow  v.  Snyder,  3  Iowa,  599;  Janes  v.  Buzzard,  Hempst.  (U.  S.)  240; 
Fratt  v.  Clark,  12  Cal.  89;   McCullough  v.  McCullough,  14  Penn.  St.  295;   Dun- 

(a)  A  similar  limitation   mav  also  be  (/')  In     England     the    liability    of    a 

inferred  from  Ihe  presumed  intention  of  County   Council   to    contribute    to  the 

the  parties  to  a  contract.     Thus,  when,  expenses    of    carrying    out    such    pro- 

upon    the    sale    of   shares   of    stock,    a  visions  as  those  of  the  Contagious  Dts- 

written  guaranty   is  given  of  the  pay-  eases  (Animals)  Act,  when   payment  is 

ment  of  semi-annual  dividends  thereon  to  be  made    out  of  a   particular   fund, 

by  the  corporation  to  the   party  guar-  as   it   is   to  be   enforced  by  action   on 

anteed,    without    mention    of    his    per-  the  case,  and    not    by    action    for  debt 

sonal  representatives,  the  presumption  under  a  statute,   is   barred    by  the  six 

is  that  it  was  not  intended  to  continue  years'  limitation.     Salford     v.    Lanca- 

withoul   limit,  and  it  is  therefore  con-  shire  County  Council,  25  Q.  B.  D.  384. 

strued  as  limited  to  the  guarantee's  life-  (<■)  The  Kansas  statute,  limiting  the 

time       Rotch  v.  French,  176  Mass.  1,  56  time  within  which  "  an  action  for  relief 

N.  E.  893.     The  statute  begins  to  run  on  the  ground  of  fraud  "  must  be  com- 

upon  separate  advances  made  under  a  menccd,  applies  only  to  such  fraud  as 

continuing   guaranty  as  the  time  they  is   a  part  of  the   substantive   cause  of 

are  respectively  made.     Parr's  Bank-  action,  and   does   not  limit  the   action 

'  0.  v.  Yates,  frSQS]   4   O.   B.   260.  for  breach   of    the  contract    when    the 

See  Ilenton  v.  Paddison,  68  L.  T.  405;  fraud    is    waived.     Brown    v.     Cloud 

Hamilton  v.  Van  Rensselaer,  43  N.  Y.  County    Bank.   2    Kan.  App.  352;   Mis- 

244,  and  43  Barb.  117;    London   &   San  souri   Savings  &  Loan  Co.  v.  Rice,  84 

Francis'  >  I!  ink  v.  Parrott,  125  Cal.  472.  Fed.  Rep.  131. 


§21.]  ASSUMPSIT    FOR   TORTS.  59 

where  a  person  cut  and  carried  away  growing  wood  of  another, 
and  converted  it  so  that  it  could  not  be  returned  in  specie,  it  was 
held  that  the  owner  might  waive  the  tort  and  sue  upon  an 
implied  contract  of  sale.1  In  all  cases  where  the  gist  of  the  trans- 
action is  a  tort,  if  it  arises  out  of  a  contract,  the  plaintiff  may- 
elect  whether  to  declare  in  tort  or  in  contract;2  and  this  covers 
that  class  of  actions  arising  from  deceit,3  fraud,4  or  a  breach  of 
warranty  in  the  sale  of  property.5  In  a  case  where  a  tort  may  be 
waived  and  assumpsit  brought  therefor,  the  latter  action  will  lie 
even  though  an  action  for  the  tort  is  barred  by  the  statute.6 

In  a  Massachusetts  case,7  where  the  defendant  obtained  posses- 
sion of  certain  promissory  notes  without  a  legal  transfer  from  the 
owner,  and  received  payment  of  some  of  them  more  than  six 
years,  and  of  others  within  six  years,  next  before  action  brought, 
it  was  held  that  he  was  liable  in  assumpsit  for  the  sums  received 
within  the  six  years ;  that  he  was  estopped  to  say  that  the  notes 

das  v.  Muhlenberg,  35  id.  351;  Alsbrook  v.  Hathaway,  3  Sneed  (Tenn.)  454; 
Chambers  v.  Lewis,  2  Hilt.  (N.  Y.  C.  P.)  591;  Tankersley  v.  Childers,  23  Ala. 
781. 

1  Halleck  v.  Mixer,  16  Cal.  574. 

8  Vasse  v.  Smith,  6  Cranch  (U.  S.)  226;  Stoyel  v.  Westcott,  2  Day  (Conn.)  418; 
Blalock  v.  Phillips,  38  Ga.  216. 

3  Pearsoll  v.  Chapin,  44  Penn.  St.  9;  Gray  9.  Griffith,  ro  Watts  (Penn.)  431. 

4  Ascutney  Bank  v.  McKormsby,  28  Vt.  721;   Leach  v.  Leach,  58  N.  Y.  630. 

5  Camp  v.  Pulver,  5  Barb.  (N.  Y.)  91;  Roth  v.  Palmer,  27  id.  652;  Evertson  v. 
Miles,  6  Johns.  (N.  Y.)  138;  Rew  v.  Barber,  3  Cow.  (N.  Y.)  272.  But  where 
assumpsit  is  brought  for  a  breach  of  warranty,  the  plaintiff  must  declare 
specially  on  the  contract,  as  it  is  the  breach  of  that  which  constitutes  the  gist 
of  the  action.     Russell  v.  Gilmore,  54  111.  147. 

6  Thus,  in  Honey  v.  Honey,  1  Sim.  &  Stu.  560,  it  was  held  that  if  a  tenant  for 
life  has  rendered  accounts  for  the  remainder-man  of  timber  cut  by  him  during 
a  period  of  more  than  six  years  before  a  bill  in  equity  for  an  account  of  such 
timber,  and  for  the  value  of  il,  the  statute  cannot  be  pleaded  to  the  till;  the 
reason  assigned  being  that  although  if  the  remainder-man  had  brought  trover 
the  tenant  might,  notwithstanding  the  rendering  of  the  accounts,  have  pleaded 
the  statute,  yet  he  could  not  do  so  if  the  remainderman  had  brought  assumpsit. 
Sir  John  Leach,  V.  C,  in  passing  upon  this  question,  said:  "  It  is  clear  from 
the  authorities  that  the  plaintiff  might  have  elected  to  bring  an  action  of 
assumpsit,  and  not  trover,  for  the  money  had  and  received  by  the  defendant 
from  the  sale  of  timber,  and  that  the  rendering  of  the  account  as  alleged  by 
the  bill  would  have  been  an  acknowledgment  by  the  defendant,  which  in  the 
action  of  assumpsit  would  have  taken  the  case  out  of  the  statute  of  limitations." 

'  Lamb  v.  Clark,  5  Pick.  (Mass.)  193:  Jones  v.  Hoar,  id.  285;  Willet  v.  Willet, 
3  Watts  (Penn.)  277;  Ivey  v.  Owens,  28  Ala.  641;  Martin  v.  Brooklyn,  1  Hill 
(N.  Y.)  545- 


60  STATUTES   OF    LIMITATION.  [CHAP.   II. 

were  obtained  by  fraud,  so  that  an  action  of  trover  therefor  would 
have  been  barred  by  the  statute,  upon  the  ground  that  a  wrong- 
doer cannot  allege  his  own  wrong  for  the  purpose  of  antedating 
the  injury,  so  as  to  let  in  the  statute;  and  that  where  the  injured 
party  has  a  right  to  either  of  two  remedies,  the  one  he  chooses  is 
not  barred  by  limitation  because  the  other  is.  The  latter  rule  is 
also  illustrated  in  the  case  of  a  note  secured  by  mortgage  upon 
lands.  Although  the  note  may  be  barred  by  the  statute  in  six 
years,  yet  the  mortgage,  being  a  specialty,  is  not  barred,  and  the 
mortgagee  may  pursue  his  remedy  upon  the  mortgage  at  any 
time  before  the  statute  has  run  upon  it,  and  recover  the  lands  or 
the  full  amount  of  his  mortgage  debt. (a)  So,  generally,  although 
statutes  of  limitation  are  equally  applicable  at  law  and  in  equity, 
yet,  where  there  are  two  securities  for  the  same  debt,  one  of 
which  is  barred  and  the  other  not,  the  creditor,  notwithstanding 
he  has  lost  his  remedy  at  law  on  the  former,  may  pursue  it  in 
equity  on  the  latter.1  And  the  same  rule  prevails  where  a  person 
is  given  certain  personal  property  to  hold  as  collateral  security 
for  the  payment  of  a  note  or  other  obligation.  The  statute  runs 
upon  the  debt,  but  this  does  not  defeat  the  creditor's  lien  upon 

1  Thayer  v.  Mann,  19  Pick.  (Mass.)  535;  Ayres  v.  Waite,  10  Cush.  (Mass.)  72; 
Hannan  v.  Hannan,  123  Mass.  441.  In  ihe  case  of  a  claim  secured  by  mort- 
gage, although  the  remedy  at  law  for  the  claim  may  be  barred  by  the  statute  of 
limitations,  the  remedy  under  the  mortgage  will  not  be  affected  by  any  lapse  of 
time  short  of  the  period  sufficient  to  raise  the  presumption  of  payment.  Banna 
v.  Wilson,  3  Gratt.  (Va.)  242;  Coles  v.  Withers,  33  id.  186;  Elkins  v.  Edwards, 
8  Ga.  325;  Pratt  v.  Huggins,  29  Barb.  (N.  Y.)  277;  Borst  v.  Corey,  15  N.  Y.  505; 
Belknap  v.  Gleason,  11  Conn.  160;  Miller  v.  Trustees  of  Jefferson  College,  14 
Miss.  651;  Trotter  v.  Erwin,  27  id.  772;  Nevitt  v.  Bacon,  32  id.  212;  Joy  v. 
Adams,  26  Me.  330;  Wiswell  v.  Baxter,  20  Wis.  713;  Cookes  v.  Culbertson,  9 
Nev.  199;  3  Parsons  on  Contracts,  99,  too;  Smith's  Executrix  v.  Washington 
City  R.  Co.,  33  Gratt.  (Va.)  84.  In  New  Hampshire  the  statute  expressly  pro- 
vides that  actions  upon  notes  secured  by  mortgage  may  bs  brought  so  long  as 
an   action    upon    the   mortgage  itself  may  be  brought. (/')     See  Appendix,  New 

(n)  See   the   authorities   on   this  rule  the  corporation.      ///     re    Severn     and 

collected  in  Kulp  v.  Kulp  (Kan.),  21  L.  Wye  and  Severn  Bridge  Ry.  Co.,  [1896] 

R.   Ann.    550,    n  ;   Hurlbert    v.    Clark,  1    Ch.    559;    Winchester    &    Lexington 

128  N.  Y.  295.     So  a  lien  upon  a  divi-  Turnpike  Co.  v.  Wickliffe,  100  Ky.  531. 

dend   declared   by   a   corporation,  and  (/')  By    the    General    Laws    of    New 

made  applicable  to  the  payment  of  an  Hampshire,  ch.  221,  §  5,  this  privilege 

overdue    promissory    note,   is  not    im-  became    limited     to    mortgages    upon 

paired  because  the    ri^ht    to  sue   upon  realty,  leaving   actions    upon  notes  se- 

thc  note  is  barred.      Drake  r\  Wetmore,  cured  by  personal  mortgages  to  be  gov- 

07  Hun,  77.      In  general,  the  statute  of  erned  by  the  general    limitation  of   six 

limitations    begins   to   run    as  to  divi-  years.     In  Hall   v.  Hall,  64  N.  H.  295, 

dends  as  soon  as  they  are  declared    by  it  was  held  that  the  repeal  of  a  statute. 


§  21.]  ASSUMPSIT    FOR   TORTS.  6\ 

the  property  given  as  collateral.1  As  the  statute  simply  bars  the 
remedy,  but  does  not  extinguish  the  debt,  where  a  lien  is  given 
upon  property  for  the  payment  of  a  claim,  whether  by  contract 
or  by  the  custom  and  usage  of  trade,  the  lien  may  be  enforced, 
although  the  remedy  upon  the  debt  itself  is  barred.2  (a)     Thus, 

Hampshire.  In  Illinois  it  is  held  that,  if  the  mortgage  contains  no  covenant 
for  the  payment  of  money,  the  statute  runs  upon  the  right  to  foreclose  it  when- 
ever the  note  which  it  secures  is  barred.      Harris  v.  Mills,  28  N.  H.  44. 

1  Slaymaker  v.  Wilson,  1  P.  &  W.  (Penn.)  216.  In  Higgins  v.  Scott,  2  B.  & 
Ad.  413,  an  attorney  had  a  lien  upon  a  judgment  for  a  debt  which  was  barred 
by  the  statute.  The  court  held  that  the  statute  only  barred  the  remedy,  so 
that  the  attorney  should  be  paid  from  the  sale  of  the  goods  upon  an  execution 
issuing  on  the  judgment,  following  Spears  v.  Hartley,  3  Esp.  81. 

2  Spears  v.  Hartley,  3  Esp.  81.  All  liens  created  by  a  deposit  of  personal  prop- 
erty by  one  person  with  another,  under  an  express  or  implied  stipulation  that 
the  latter  shall  retain  it  as  security,  are  in  the  nature  of  pawns  or  pledges, 
whether  the  deposit  was  made  for  trade  or  for  bare  custody,  the  term  "  pawn," 
being  here  applicable  to  both  purposes.  As  to  the  distinction  between  a  pawn 
and  a  mortgage,  a  mortgage  is  a  conditional  sale,  by  which  the  general  legal 
property  in  the  thing  is  conveyed  to  the  mortgagee,  subject  to  the  power  of 
redemption,  while  by  a  pawn  only  a  special  property  is  acquired  with  the  right 
to  detain  it  as  security  until  redeemed,  the  general  property  still  remaining  in 
the  pawnor.  See  Ryall  v.  Rolle,  1  Atk.  165.  At  law,  though  not  in  equity,  a 
mortgage  transfers  the  properly,  and  no  lien  can  exist,  for  a  lien  necessarily 
supposes  a  right  of  property  in  another,  and  a  man  cannot  have  a  lien  upon  his 
own  property.  Lickbarrow  v.  Mason,  6  East,  25,  n,  In  the  case  of  pawns,  a 
lien  is  created  by  the  transaction  itself,  and  may  be  claimed  to  any  extent  to 
which  the  agreement  declares  it  shall  extend,  whether  it  be  for  money  previ- 
ojsly  lent,  or  at  the  time  of  deposit,  or  to  be  thereafter  advanced.  Hammond 
v.  Barclay,  2  East,  227;  Madden  v  Kempster,  1  Camp.  12.  But  quart,  whether 
if  the  drawer,  payee,  and  acceptor  of  a  bill  became  bankrupts  after  the  bill  is 
negotiated,  and  the  payee  is  in  possession  of  property  of  the  drawer,  who,  in 
the  event  of  the  bill  being  proved  against  the  estate  of  the  payee,  will  be 
indebted  to  the  payee,  the  assignee  of  the  bankrupts  under  the  commission 
against  the  estate  of  the  payee  will  have  any  lien  arising  from  the  possibility 
of  such  debt.  Walker  v.  Birch,  6  T.  R.  258.  The  question  how  far  a  subject 
which   is   pledged  for  a  debt  already  due  can  be  considered  as  a  security  for 

making  the  period  of  limitation   upon  except    in    the    case     of    necessaries; 

a  note  secured  by  chattel  mortgage  the  though  it  is  said  that  a  party  is  not  to 

same  as  that  within  which  the  plaintiff  be  deprived  of  his  right  to  rely  on  his 

might  sue  upon  the  mortgage,  did  not  discharge   unless   he   has    used    words 

take  away  the  existing  right  of  action  that    plainly    mean     to     renounce    it. 

upon  such  note.  Bigelow     v.      Norris,     139     Mass.     12; 

(<i)  The    running   of    the    statute   of  Champion  v.   Buckingham,  165   Mass. 

limitations   puts  an  end  to  the  remedy  76.     As  to  the  effect  of  insolvency  pro- 

tc  which   it   applies,    not  to   the  debt,  ceedings,    or    of    an     assignment    for 

Shaw  v.   Silloway,  145   Mass.  503,  506.  creditors,  in  suspending  the  statute  of 

The  effect  of  a  discharge  in  bankruptcy  limitations,   see  Re  St.    Paul    German 

is   analogous  to  thai  of   the  bar  of  the  Ins.  Co.  (Minn.),  26  L.  R.  A.  737,  n. 
statute    of    limitations,   or  of    infancy 


62  STATUTES   OF   LIMITATION.  [CHAP.   II. 

where  the  defendant,  a  wharfinger,  claimed  a  lien  upon  a  log  of 
mahogany  for  wharfage  and  a  general  balance  on  account,  and 
because  the  balance  claimed  was  barred  by  the  statute,  and,  the 
plaintiff  insisting  that  the  defendant  could  not  justify  under  the 
lien,  the  court  held  otherwise.1  In  Virginia  it  has  been  held  that 
the  statute  does  not  run  against  the  lien  of  a  grantor  for  the  pur- 
chase-money of  land,  although  the  debt  itself  is  barred,  where, 

further  loans  where  there  is  no  agreement  to  that  effect,  must  be  determined 
largely  by  the  circumstances  of  each  case.  If  it  can  be  presumed  from  these 
that  the  ground  and  inducement  upon  which  the  pawnee  advanced  the  further 
loans  was  his  having  a  pledge  in  his  hands,  a  court  of  equity  will  not  suffer  the 
pledge  to  be  redeemed  without  payment  of  all  the  advances.  Ex  parte  Ockenden, 
i  Atk.  235.  See  Dermandray  v.  Metcalf,  2  Vern.  291.  Yet  there  is  no  general 
rule,  either  at  law  or  in  equity,  that  where  a  person  holding  security  for  a  loan 
already  made,  advances  moie  to  the  same  person,  he  invariably  can  hold  such 
security  until  both  loans  are  repaid;  because,  if  the  circumstances  rebut  the 
presumption  that  the  last  loan  was  made  on  the  security,  he  can  only  retain  it 
for  the  payment  of  the  first  loan.  Ex  parte  Ockenden,  supra.  See  Jones  v. 
Smith,  2  Ves.  Jr.  372.  The  decree  in  this  case  was  reversed  in  the  House  of 
Lords  (6  id.  229,  note  d),  but  not  upon  ihis  ground.  See  also  Vanderzee  v. 
Willis,  3  Bro.  C.  C.  21;  Adams  v.  Clayton,  6  Ves.  Jr.  226.  At  common  law 
a  lien  cannot  be  acquired:  1st.  Where  the  deposit  is  made  after  an  open  act  of 
bankruptcy  by  the  pawnor,  or  with  the  intent  to  give  the  pawnee  a  fraudulent 
preference  over  other  creditors  in  the  event  of  his  bankruptcy.  Tamplin  v. 
Diggins,  2  Camp.  312;  Wilson  v.  Balfour,  id.  579.  2d.  Where  the  goods  were 
pawned  without  the  authority  of  the  owner,  even  though  the  pawnee  v/as 
ignorant  of  the  fact.  Marsden  v.  Panshall,  1  Vern.  407;  Maanss  v.  Henderson, 
1  East,  335;  De  Bouchout  v.  Goldsmid,  5  Ves.  Jr.  2rt;  Daubigny  v.  Duval,  5 
T.  R.  604;  Strode  v.  Blackburne,  3  Ves.  Jr.  222.  This  rule,  of  course,  does  not 
apply  to  property  resembling  money,  as  banknotes,  notes  payable  to  bearer, 
bills  of  exchange  duly  indorsed,  and  such  other  securities,  the  legal  interest  in 
which  by  the  law  merchant  passes  upon  delivery,  and  which,  if  passed  to  a 
bona  fide  holder  for  value,  cannot  be  recovered  by  the  original  owner.  Miller 
v.  Race.  1  Burr.  432;  Glyn  v.  Baker,  13  East,  509;  Grant  v.  Vaughan,  3  Burr. 
1516;  King  z:  Milsam,  2  Camp.  5;  Lowndes  v,  Anderson,  13  East,  130;  Solo- 
mon v.  Bank  of  England,  id.  135,  n.;  Peacock  v.  Rhodes,  Davy,  682;  Hill  v. 
Simpson,  7  Ves.  Jr.  152;  Taylor  v.  Hawkins,  8  id.  209;  Newson  v.  Thornton,  6 
East,  17;  M'Leod  v.  Dummond,  17  Ves.  Jr.  152;  McCombe  z:  Davies,  6  East, 
538;  Paterson  v.  Tash,  2  Strange,  1178;  Hartop  v.  Hoare,  3  Atk.  44;  Horwood 
v.  Smith,  2  T.  R.  750;  Viner's  Abr.,  tit.  Pawn  (E).  Yet  it  has  been  held  that 
where  goods  obtained  by  false  pretenses  were  pawned  without  notice  of  the 
fraud  10  the  pawnee,  that  he  acquired  a  lien  thereon,  so  that  he  could  maintain 
trover  therefor  against  the  owner  who  took  them  out  of  the  pawnee's  possession. 
Parker  v.  Patrick,  5  T.  R.  175. 

1  Spears  v.  Hartley,  3  Esp.  81.  See  also  Higgins  v.  Scott,  2  B.  &  Ad.  413.  In 
.Hi  ises  where  bv  contract  or  by  operation  of  law  a  lien  exists,  this  rule  applies. 
Kerrison  v.  Williams,  3  Camp.  418. 


§21.]  ASSUMPSIT.  63 

at  the  time  of  sale,  he  gave  a  bond  conditioned  for  the  execution 
of  a  deed  by  him  when  the  purchase-money  should  be  paid  ; !  and 
the  same  rule  also  prevails  where  a  lien  is  given  by  statute  for  a 
simple-contract  debt.  Thus,  where  the  statute  gives  to  a  munici- 
pal corporation  a  lien  upon  land  opposite  to  which  certain 
improvements  are  made,  the  statute  does  not  run  upon  the  lien, 
nor  is  it  lost  until  the  lapse  of  such  a  period  that  the  law  will 
raise  a  presumption  that  the  claim  has  been  satisfied.2  (a) 

It  was  intimated  in  an  early  New  York  case3  that  a  mortgage 
to  secure  a  simple-contract  debt  was  presumed  to  have  been  paid 
within  six  years  from  the  time  when  it  became  due,  and  in  that 
event  that  the  security  was  released  from  the  lien.  But  this  doc- 
trine does  not  prevail,  except  when  the  statute  provides  that  the 
lapse  of  the  statutory  period  shall  raise  such  presumption,  in 
which  case  the  lien  would  clearly  be  destroyed  unless  the  pre- 
sumption is  overcome  by  some  of  the  modes  provided  by  the 
statute.  Thus,  in  New  York,  by  statute,4  it  s  provided  that,  after 
the  expiration  of  twenty  years  from  the  date  of  a  final  judgment 
or  decree  for  the  payment  of  money,  such  right  shall  be  presumed 
to  have  been  extinguished  by  payment ;  but  such  presumption  may 
be  repelled  by  proof  of  payment  of  some  part,  or  by  proof  of  a 
written  acknowledgment  of  such  right  of  action  within  that  period. 
In  North  Carolina,5  after  the  lapse  of  ten  years,  the  presumption 
of  payment  is  raised  against  all  judgments  and  actions  upon 
sealed  instruments,  and  after  three  years  on  other  contracts, 
express  or  implied. (b)  Under  this  statute,  so  far  as  liens  are  con- 
cerned, as,  at  common  law,  the  presumption  of  payment  arising 

1  Hopkins  v.  Cockerell,  2  Gratt.  (Va.)  88. 
s  Council  v.  Moyamensing,  2  Penn.  St.  224. 

3  Jackson  v.  Sackett,  7  Wend.  (N.  Y.)  94. 

4  Bliss's  New  York  Ann.  Code  (4th  ed.),  §376.  See  Bean  v.  Tonnele,  94 
N.  Y.  381. 

'North  Carolina  Code  (1883).  §§  152,  155. 

(a)  In  Texas,  where  no  distinction  is  or's   title   is  not  transferred  to  him,  as 

now  made  between  actions  upon  legal  he  has  only  a  vendor's  lien  for  the  se- 

and  equitable  demands,  a  suit  to  estab-  curity  of  the  note,  is   without  remedy 

lish   a   lost  deed  of  trust  is  not  for  the  when  the  note  is  barred  by  limitation, 

recovery  of    real   estate,  and  is  within  Farmers'  Loan  &  Trust  Co.  v.  Beckley, 

the    four    years'  limitation  of    actions  93  Tex.  267. 

"  other    than    for   the   recovery  of  real  (b)  In  this  State  a  cause  of  action  on 

estate,  for  which  no  limitation  is  other-  contract  or  tort  loses  its  identity  when 

wise  provided;  "  and  the  assignee  of  a  merged    in    a    judgment,    and    a    new 

note    given    for   the   purchase   price  of  cause  of  action  arises  thereon.   McDon- 

land  contracted  to  be  sold,  if  the  vend-  aid  v.  Dickson,  87  N.  C.  404. 


^4  STATUTES    OF    LIMITATION.  [CHAP-   n- 

from  the  lapse  of  time  may  be  rebutted,  it  would  seem  that  the 
presumption  raised  by  the  statute  may  be  also.  In  Wisconsin,1 
every  judgment  and  decree  in  any  court  of  record  of  the  United 
States,  or  of  any  State  or  territory  thereof,  is  deemed  to  be  paid 
and  satisfied  at  the  expiration  of  ten  years  after  the  judgment  or 
decree  was  rendered.  In  Missouri,2  a  similar  provision  exists  as 
to  judgments  and  decrees,  with  the  exception,  however,  that  such 
presumption  may  be  repelled  by  proof  of  payment,  or  written 
acknowledgment  of  indebtedness  made  within  ten  years  of  some 
part  of  the  amount  recovered  by  such  judgment  or  decree,  and 
that  in  all  other  cases  it  shall  be  conclusive,  and  the  same  pro- 
vision is  extended  to  all  sealed  instruments  for  the  payment  of 
money. (a)  In  these  States  the  rule  would  doubtless  be,  as  to  the 
class  of  securities  named  in  the  several  statutes,  that  the  lien  was 
extinguished  by  the  lapse  of  the  statutory  period;  but  the 
statute  only  applies  to  the  class  of  claims  named. 

SEC.  22.  Lapso  of  Statutory  Period  does  not  give  Title  to  the 
Pledgee  of  Property,  except.  —  If  a  stipulated  time  is  agreed  upon 
for  the  payment  of  a  debt  secured  by  a  pledge,  the  fact  that  the 
debt  is  not  paid  at  the  time  does  not  pass  the  absolute  title  to 
the  property  to  the  pawnee.  He  may,  after  that  time,  sell  the 
pledge  if  he  chooses  so  to  do,  and  after  reimbursing  himself  pay 
the  balance,  if  any,  received  therefor  over  to  the  pledgor;3  but 

1  Wisconsin  Stats.  (1898),  §  4221. 

2  Missouri  Rev.  Stats.  (1899),  §  4297. 

3  Story  on  Bailments,  235;  Glanville,  book  10,  c.  6.  Where  there  is  no  agree- 
ment that  the  pawnee  shall  sell,  he  cannot  be  compelled  to  do  so.  Badlam  v. 
Tucker,  1  Pick.  (Mass.)  389.  But  if  he  chooses  to  do  so,  he  may  sell  without 
judicial  process,  upon  giving  reasonable  notice  to  the  pledgor.  Parker  v. 
Brancker,  22  Pick.  (Mass.)  46.  The  sale,  unless  otherwise  agreed,  must  be  at 
public   auction,    with  nolice  to    the   pledgor    of    the    time    and    place    of    sale. 

(a)  In    Arkansas,  £  4831   of   the  stat-  Alabama     Code    limits    actions    upon 

utes,  Sandels*  and  Mill's  Digest  (1894.],  judgments  or  decrees  to  twenty  years, 

providing    that   "  actions  on  all  judg-  but  aclions   upon  judgments  obtained 

ments  and  decrees  shall  be  commenced  before  justices  of  the  peace  in  the  Stale 

within  ten  years  after  the  cause  of  ac-  to  six     years.      Civil  Code    (1896),  §§ 

lion  shall  accrue,  and  not  afterwards,"  2794,   2796,    subd.  9.     As  to   the  latter 

applies  to  judgments  of  justices  of  the  class    of    actions    the    running    of    the 

peace,  there    being    no   necessary  con-  statute  of  limitations  is  not  suspended 

neciion      between      that     section     and  by    the  issue  of  executions.     Field    v. 

,,  limiting   to  five   years  the  time  Sims,  96   Ala.  540.      In    Massachusetts 

within  which  executions  may  be  issued  judgments  of  justices  of  the  peace  and 

on  judgments  of  justices  of  the  peace.  c  f  trial  justices  are  barred  in  six  years. 

Hicks   v.  Brown,   38   Ark.  469;   Tram-  Mead  v.  Bowker  168  Mass.  234. 
mell    v.    Anderson,  52    Ark.  176.     The 


§  22.]  ASSUMPSIT.  65 

if,  instead  of  selling  the  pledge,  he  retains  it  in  his  possession,  he 
continues  to  hold  it  as  a  pledge,  and  the  pledgor  may  redeem  it 
at  any  time,  as  neither  prescription  nor  the  statute  of  limitations 
run  against  it.1  And  if  no  time  is  fixed  for  its  redemption,  the 
pawnor  has  his  whole  lifetime  in  which  to  redeem,  unless  the 
pawnee  quickens  him  through  a  bill  in  equity,  or  by  notice  in 
pais.2  And  this  is  so  even  though  the  pawnee  dies,  and  a  tender 
made  to  his  executor  is  good,  and  revests  the  title  to  the  prop- 
erty in  the  pawnor.3 

Washburn  v.  Pond,  2  Allen  (Mass.)  474.  But  see  Worthington  v.  Tormey,  34 
Md.  182,  where  it  was  held  that  notice  of  the  place  of  sale  need  not  be  given. 
As  to  the  pawnee's  duty  to  pay  the  surplus  over  to  the  pawnor,  although  the 
statute  has  run  on  the  debt  it  was  given  to  secure,  see  Hancock  v.  Franklin 
7ns.  Co.,  114  Mass.  153.  But  it  must  be  understood  that  a  right  to  sell  only 
exists  when  the  lien  is  created  by  contract.  A  lien  that  is  raised  by  usage  or 
the  law  confers  no  such  right,  Doane  v.  Russell  3  Gray  (Mass.)  382;  Briggs  v. 
Boston  &  Lowell  R.  Co.,  6  Allen  (Mass.)  246,  unless  the  statute  confers  such 
right. 

1  Kemp  v.  Westbrook,  1  Ves.  278;  Slaymaker  v.  Wilson,  1  P.  &  W.  (Penn.) 
216;  White  Mountain  R.  Co.  v.  Bay  State  Iron  Co.,  50  N.  H.  57.  In  Weeks  v. 
Weeks,  5  Ired.  (N.  C.)  Eq.  111,  it  was  held  that  a  person  who  had  received 
slaves  from  his  father  as  a  parol  gift  or  loan  could  not  avail  himself  of  the 
statute  of  limitations  to  protect  his  title  thereto;  but  in  a  Missouri  case,  Cook 
v.  Clippard,  12  Mo.  379,  where  a  slave  was  loaned  and  held  five  years  without 
the  owner  ever  having  demanded  the  same,  a  purchaser  from  the  bailee  who 
knew  the  facts  was  held  to  have  acquired  a  good  title  thereto. 

iCortelyou  v.  Lansing,  2  Caines  (N.  Y.)  200;  Garlick  v.  James,  12  Johns. 
-(N.  Y.)  146;  Hart  v.  Ten  Eyck,  2  Johns.  Ch.  (N.  Y.)  62.  Where  the  pledge  is 
secured  by  mortgage,  the  pledgor  may  redeem,  after  foreclosure,  even  if  the 
pledgor  still  retains  the  property.  White  Mountain  R.  Co.  v.  Bay  State  Iron 
Co.,  5  N.  H.  57. 

s  Ratcliffe  v.  Davis,  Yelv.  178.  In  this  case  the  plaintiff  pawned  a  diamond 
hat-band  to  one  Whitlock  for  a  loan  of  £25,  no  time  being  agreed  upon  for 
redemption;  after  Whitlock's  wife,  with  her  husband's  assent,  had  delivered 
the  hat-band  to  the  defendant,  Whitlock  died,  and  after  his  death  the  plaintiff 
tendered  the  £25  to  his  wife,  who  was  executrix;  she  refused  to  receive  it,  and 
also  demanded  the  hat-band  of  the  defendant,  who  refused  to  deliver  it  to  him. 
In  trover  therefor  the  court  held  that  the  tender  was  well  made  to  the  pawnee's 
executrix,  and  that  a  recovery  might  be  had  of  the  defendant,  for  the  reason 
that,  where  no  time  for  redemption  is  agreed  upon,  the  pawnor  has  his  whole 
lifetime  in  which  to  redeem.  In  Cortelyou  v.  Lansing,  supra,  the  subject  is  fully 
discussed.  In  Tucker  v.  Wilson,  1  P.  W.  261;  Lockwood  v.  Ewer,  2  Atk.  303, 
and  Kemp  v.  Westbrook,  1  Ves.  278,  it  was  said  that  a  pawnee  of  stock  was  not 
bound  to  bring  a  bill  of  foreclosure,  and  might  sell  without  it.  But  in  the  first 
two  cases  the  slock  had  been,  in  the  first  instance,  absolutely  transferred  to  the 
mortgagee,  with  a  defeasance  thereto  that  the  assignment  should  be  void  or 
the  stock  retransferred  on  payment  at  the  day.  They  were  cases,  therefore,  of 
[stats,  of  lim.  —  5] 


66  STATUTES    OF    LIMITATION.  [CHAP.   II. 

While,  as  stated,  the  statute  of  limitations  does  not  give  the 
pawnee  the  absolute  property  in  the  pledge  during  the  life  of  the 
pawnor,  so  long  as  it  is  unsold  and  he  retains  it  in  his  possession, 
yet  after  a  long  lapse  of  time,  if  no  claim  for  redemption  is  made, 

a  mortgage  of  goods;  and  though  it  is  nowhere  stated  in  what  manner  the 
mortgagee  is  to  sell,  yet  in  the  first  of  these  cases  there  was  a  previous  notice 
to  the  opposite  party  according  to  the  rule  of  the  civil  law.  and  the  giving  of 
this  notice  was  asserted  to  be  the  constant  practice.  The  last  case  was  strictly 
a  pledge  of  chattels  to  secure  a  loan  without  a  specified  time  of  payment;  and 
the  assignee  of  the  pawnor,  who  had  become  a  bankrupt,  was  allowed  to  redeem. 
Demandray  v.  Metcalf,  Prec.  Ch.  420;  2  Vern.  691,  69S;  Gilb.  Eq.  Rep.  104;  1 
Eq.  Cas.  Abr.  324,  s.  c. ;  and  Vanderzee  v.  Willis,  3  Bro.  Ch.  21,  are  cases  of 
pledge,  and  perfectly  in  point.  In  the  one  case  there  was  a  pawn  of  jewels, 
and  in  the  other  of  bonds  and  securities.  In  both  cases  the  time  of  payment 
had  elapsed  in  the  lifetime  of  the  pawnor;  but  the  executors,  on  a  bill  to 
redeem  on  payment  of  the  debt  and  interest,  obtained  a  decree  accordingly.  It 
is  said,  indeed,  in  the  first  case,  that  the  executors  could  not  have  back  the 
jewels  without  the  assistance  of  chancery.  If  by  this  was  meant  the  identical 
chattel  pawned,  it  was  perhaps  correct;  but  if  it  meant  that  executors  had  no 
remedy  but  in  equity,  it  must  be  a  mistake;  for  a  court  of  law  has  complete 
jurisdiction  over  the  subject,  and  is  equally  competent  to  grant  relief  where  the 
right  of  property  is  not  extinguished.  If  a  court  of  law  will  permit  one  party 
to  demand  his  debt  after  the  time,  it  will  equally  permit  the  other  party  to 
tender  and  redeem.  In  South  Sea  Co.  v.  Duncomb,  2  Stra.  919,  it  was  decided 
that  where  the  pawnor  of  stock  did  not  pay  at  the  day  stipulated,  the  pawnee 
had  his  election  to  sue  for  the  debt,  or  to  stand  to  his  remedy  against  the  pawn. 
The  court  did  not  state  the  remedy;  but  still  there  was  to  be  a  remedy  under 
the  sanction  of  law;  and  the  only  remedies  hitherto  suggested  in  the  books  are 
the  process  by  writ  as  stated  in  Glanville;  the  bill  of  foreclosure,  as  hinted  in 
other  cases,  and  the  sale  by  the  pawnee,  after  notice,  in  cases  of  the  transfer  of 
stock,  as  seems  to  have  been  the  practice.  It  follows  that  whatever  right  to 
redeem  exists  in  the  pawnor  at  his  death,  that  right  descends  entire  and  unim- 
paired to  his  representative.  The  expression  in  the  text,  that  the  pawnor  has 
his  life  as  a  time  to  redeem  when  no  time  of  redemption  is  fixed,  must  be  taken 
with  this  qualification,  that  the  pawnee  does  not,  in  the  meantime,  call  upon 
him  to  redeem.  A  sale  without  such  call  and  notice  was,  in  the  case  of  Cortel- 
you  v.  Lansing,  supra,  held  to  be  a  conversion.  A  similar  decision  has  been 
made  in  Pennsylvania.  De  Lisle  v.  Priestman,  1  Browne  (Penn.)  176.  Except 
in  cases  of  special  agreement,  the  Roman  law  never  allowed  a  pledge  to  be  sold 
by  the  creditor,  but  upon  notice  to  the  debtor,  and  the  allowance  of  a  year's 
redemption.  1  Hub.  157,  §§  2,  3;  id.  172,  §  6;  Perezius  on  the  Code,  vol.  ii., 
tit.  34,  £;;  4,  5.  And  as  this  was  not  sufficiently  observed,  Justinian  regulated 
the  method  of  foreclosure  by  a  particular  ordinance,  which  allowed  two  years' 
notice,  or  two  years  after  a  judicial  sentence,  to  the  debtor.  The  creditor  may 
sue  for  his  debt  and  proceed  in  the  same  manner  as  he  might  if  no  pledge  had 
been  given;  but  on  payment  of  the  debt  he  must  restore  the  pledge.  Glanville, 
lib.  10,  c.  6,  12;  Anon.,  12  Mod.  504;  Vin.  Abr.,  tit.  Pawns.  Contra,  Cleverly 
v.  Br.icUctt,  8  Mass.  150,  which  has  been  overruled.     Taylor  v.  Cheever,  6  Gray 


§  23-]  ASSUMPSIT.  67 

the  right  will  be  deemed  extinguished,  and  a  court  of  equity  will 
decline  to  entertain  a  bill  for  its  redemption.1 

SEC.  23.  Clauses  in  the  Several  Statutes  that  cover  Simple  Con- 
tracts.—  In  most  of  the  States  of  this  country,  the  action  of 
assumpsit  is  expressly  brought  within  the  statute,  while  in  others 
the  matter  is  left  to  inference,  as  in  the  statute  of  James.  Thus, 
in  Maine,  the  clause  covering  this  class  of  actions  is  "  actions  of 
assumpsit  or  upon  the  case  founded  on  any  contract  or  liability, 
express  or  implied  ;"  2  in  Vermont,  *' actions  of  account,  assump- 
sit, or  on  the  case,  founded  on  a  contract  or  liability,  expressed 
or  implied;  "  3  in  New  Hampshire,4  "  all  other  personal  actions 
shall  be  brought  within  six  years  after  the  casue  of  action  accrued, 
and  not  after."  This  covers  all  personal  actions  except  actions 
for  words,  assault,  battery,  wounding,  or  imprisonment,  which 
must  be  brought  within  two  years.  In  Massachusetts,5  "  actions 
of  contract  founded,"  etc.  In  Connecticut,6  "no  action  of 
account,  book  debt,  debt  on  simple  contract,  or  of  assumpsit, 
founded  upon  implied  contract,  or  upon  any  contract  in  writing 
not  under  seal,  except  promissory  notes  not  negotiable,  shall  be 
brought  but  within  six  years  next  after  the  right  of  action  shall 
accrue."  In  Rhode  Island  7  the  statute  is  substantially  the  same 
as  21  James  I.  In  New  York,8  "  an  action  upon  a  contract  obli- 
gation, or  liability,  express  or  implied;  except  a  judgment  or 
sealed  instrument,"  is  barred  in  six  years,  while  an  action  upon  a 
sealed  instrument  is  only  barred  in  twenty  years.  The  action  of 
assumpsit,  as  a  distinctive  action,  does  not  exist  under  the  code, 
but  the  rules  applicable  thereto  apply  to  actions  upon  the  class 

(Mass.)  146;  Cornwall  v.  Gould,  4  Pick.  (Mass.)  444;   Beckwith  v.  Sibley,  n  id. 
482;  Whilvvell  v.  Brigham,  19  id.  117. (a) 

1  Story  on  Bailments,  235;  Powell  on  Mortgages;  Coyngham's  App.,  57  Penn. 
St.  474;  Davis  v.  Funk,  39  id.  243;  Sitgreaves  v.  Bank,  49  id.  359;  DiHer  v. 
Brubaka,  52  id    498. 

5  Maine  Rev.  Stats.  (1883),  ch.  81,  §  82,  cl.  4. 

3  Vermont  Stats.  (1894),  §  1199. 

4  Appendix,  New  Hampshire. 

6  Appendix,  Massachusetts. 
*  Appendix,  Connecticut. 

1  Appendix,  Rhode  Island. 

8  New  York  Code  (Bliss's  4th  ed.),  §§  381,  382. 

(a)  See  also  Cumnock  v.  Newburyport  Savings  Inst'n,  142  Mass.  342;  Lee  v. 
Butler,  167  Mass.  426,  433. 


68  STATUTES   OF    LIMITATION.  [CHAP.   II. 

of  contracts  for  which  the  action  formerly  lay.  In  New  Jersey,1 
the  statute  relating  to  this  matter  is  the  same  in  substance  as  the 
statute  21  James  I.,  c.  16,  §  3;  and  such  also  is  the  case  in  Penn- 
sylvania.2 In  Delaware,  "  no 'action  of  debt  not  founded  upon 
a  record  or  specialty,  no  action  of  account,  no  action  of  assump- 
sit, and  no  action  upon  the  case  whatever,  shall  be  brought  after 
the  expiration  of  three  years  from  the  accruing  of  the  cause  of 
such  action. "  3  In  Maryland,4  ' '  all  actions  of  account,  assumpsit, 
or  upon  the  case,"  are  required  to  be  brought  within  three  years 
after  the  cause  of  such  action  arose.  In  Virginia,5  provision  is 
made  for  actions  upon  contracts,  written  or  unwritten,  and  they 
are  barred  in  five  years,  except  where  the  action  is  for  goods 
charged  in  any  store  account,  in  which  case  the  statute  runs  in 
two  years.  In  North  Carolina,6  actions  upon  contracts  are  barred 
in  three  years;  and  this  embraces  actions  of  assumpsit,  as  do  all 
the  statutes  which  make  provision  for  the  limitation  of  actions 
upon  contracts,  without  specifying  the  particular  form  of  action, 
as  the  word  "  assumpsit  "  includes  all  actions  upon  promises, 
express  or  implied,  and  the  word  "contract,"  as  used  in  the 
statutes  embraces  the  action  of  assumpsit  In  South  Carolina  in 
six  years;7  and  in  Georgia,8  all  simple  contracts  are  barred  in  six 
years.  In  Alabama,9  Mississippi,10  Tennessee,11  and  Kentucky,12 
actions  upon  contracts  are  provided  for.  In  Ohio,13  "  actions 
upon  the  case,  covenant,  and  debt  founded  upon  a  specialty,  or 
any  agreement,  contract,  or  promise  in  writing,  are  barred  in 
fifteen  years;  "  and  actions  upon  contracts  not  in  writing,  express 
or  implied,  within  six  years.  In  this  State  the  words  "  action 
upon  the  case  "  have  been  held  to  include  assumpsit  in  all  its 
forms;  M  but  the  language  of  the  statute  is  now  broad  enough,  so 

1  Appendix,  New  Jersey. 
'Appendix,  Pennsylvania. 
3  Appendix,  Delaware. 

*  Appendix,  Maryland. 

*  Appendix,  Virginia. 

*  Appendix,  North  Carolina. 
1  Appendix,  South  Carolina. 
'Appendix,  Georgia. 
•Appendix,  Alabama. 

10  Appendix,  Mississippi. 

"  Appendix,  Tennessee. 

"  Appendix,  Kentucky. 

"  Appendix,  Ohio. 

M  Williams  v.  Williams,  5  Ohio,  444. 


§  23.]  ASSUMPSIT.  69 

that  it  can  be  said  to  expressly  include  this  form  of  action.  In 
Indiana,1  the  statute  expressly  applies  to  contracts  in  writing,  and 
unwritten  contracts  fixing  different  periods  of  limitation  for  each. 
Such  also  is  the  case  in  Illinois.2  In  Michigan,3  this  portion  of 
the  statute  is  the  same  as  in  Maine.  In  Wisconsin,4  "  an  action 
upon  any  *  *  *  contract  for  the  payment  of  money,"  also 
"  upon  any  other  contract,  express  or  implied,"  must  be  brought 
in  six  years;  and,  except  that  a  distinction  is  made  between  con- 
tracts in  writing  and  those  not  in  writing,  such  is  practically  the 
provision  in  Missouri 5  and  in  Arkansas.6  In  Florida,7  "  an  action 
upon  any  contract,  whether  sealed  or  unsealed,  for  the  payment 
of  money,"  must  be  brought  in  ten  years;  and  "  all  actions  upon 
contracts  *  *  *  express  or  implied,"  not  in  writing,  in  five 
years.  In  Texas,8  "  actions  foi  debt  when  the  indebtedness  is 
evidenced  by  or  founded  upon  any  contract  in  writing,"  are 
baried  in  four  years;  and  by  sec.  3207 9  the  same  limitation 
applies  to  unwriiten  contracts.  In  Iowa,10  actions  "  founded  on 
unwritten  contracts  "  must  be  commenced  within  five  years,  and 
upon  "  written  contracts  "  within  ten  years,  after  the  cause  of 
action  accrues;  in  California,11  "  upon  any  contract,  obligation,  or 
liability  founded  upon  an  instrument  in  wiitting, "  within  four 
years,  and  upon  those  not  in  writing,  in  two  years  (a).  In  Ore- 
gon,12 actions  upon  "a  contract  or  liability,  express  or  implied," 
are  barred  in  six  years;  and  actions  upon  a  judgment  or  decree 
of  any  court  of  the  United  States,  or  of  any  State  or  Territory 
within  the  United  States,  and  upon  sealed  instruments,  are  barred 

1  Appendix,  Indiana. 
s  Appendix,  Illinois. 

3  3  Michigan  Comp.  Laws  (1897),  ch.  268,  §  I. 

4  Appendix,  Wisconsin. 

5  Appendix,  Missouri. 
1  Appendix,  Arkansas. 

I  Appendix,  Florida. 

8  Texas  Rev.  Stats.  (1895),  art.  3356. 

9  Now  ibid.,  §  3358. 

10  Appendix,  Iowa. 

II  Appendix,  California. 

12  1  Hill's  Ann.  Oregon  Laws  (2d  ed.,  1892),  p.  134. 

(a)  A  resolution  of  the  directors  of  a  compensation   for  his  services,  is  not 

corporation,   appointing  one    of    them  within  a  limitation  statute  relating  to 

superintendent,  but    not   providing  for  contracts    in     writing.      McCarthy    v. 

his  compensation,  though  sufficient  to  Mount  Tecarte  Land  &  Water  Co.,  in 

raise   an   implied    obligation   to   make  Cal.  328. 


yo  STATUTES    OF    LIMITATION.  [CHAP.   II. 

in  ten  years.  By  sec.  6,  actions  upon  any  liability  created  by 
statute,  except  for  penalties  and  forfeitures,  are  barred  in  six  years ; 
and  by  sec.  1 1  all  actions  not  specified  are  barred  in  ten  years.  In 
Minnesota,  ' '  an  action  upon  a  contract,  express  or  implied  ; l  "  (a) 
in  Kansas,2  "  an  action  upon  any  agreement,  contract,  or  promise 
in  writing,"  or  "an  action  upon  any  contract  not  in  writing, 
express  or  implied,"  must  be  commenced  within  five  years  in  the 
former  State  and  in  three  years  in  the  latter.  In  Nevada,3  "  an 
action  upon  any  contract,  obligation,  or  liability  founded  upon 
an  instrument  in  writing, "  must  be  commenced  within  five  years, 
and  "  an  action  upon  a  contract,  obligation,  or  liability  not 
founded  upon  an  instrument  in  writing,"  within  two  years;  in 
Nebraska,4  "  upon  any  agreement,  contract,  or  promise  in  writ- 
ing, five  years,"  and  "  an  action  upon  a  contract  not  in  writing, 
expressed  and  implied,"  within  four  years. 

This  summary  shows  how  far  the  decisions  of  the  courts  of  one 
State  are  applicable  under  this  head  in  another,  and  also  the 
applicability  of  the  decisions  of  the  English  courts  under  sec.  3 
of  the  statute  21  James  I.  upon  this  head,  which  is  practically  in 
force  in  all  the  States. 

SEC.  24.  Account.  Nature  of  Action.  —  The  action  of  account 
is  probably  one  of  the  oldest  of  the  common-law  actions.  It  is 
resorted  to  to  settle  partnership  accounts,  and  generally  where 
there  is  a  priority,  as  against  guardians  in  socage,  or  where  a 
person  stands  in  the  relation  of  a  bailiff  or  receiver;  it  really  bears 
a  closer  relation  to  a  bill  in  equity  than  to  an  action  at  law.5 
Anciently,  this  form  of  action  was  restricted,  but  gradually  it  was 
extended  to  cases  of  mutual  account  between  merchants,  and  lay 
in  all  cases  where  a  person  calling  himself  a  merchant  brought  an 

1  Appendix,  Minnesota. 

5  Appendix,  Kansas. 

3  Appendix,  Nevada. 

*  Appendix,  Nebraska. 

sCottam  v.  Partridge.  4  M.  &  G.  271,  285;  Scott  v.  Mcintosh,  2  Camp.  238; 
Inglis  v.  Hay,  8  M.  &  W.  769.  See  Dwindle  v.  Edey,  102  N.  Y.  423;  Peters  v. 
Delaplaine,  49  N.  Y.  362. 

(a)  The  further  provision  of  the  Min-  to    one    of    its  citizens,  but    barred  by 

nesota  statute  barring  an  action  already  a  foreign    statute,   is    also    barred    in 

barred  in  another  "  Slate  or  territory,"  Minnesota.     Luce  v.  Clarke,  49  Minn. 

re  the  <  mse of  action  has  arisen,"  3^6.     See  Osgood  v.  Artt,  10  Fed.  Rep. 

1-   1   mstrued    to   mean  that  a  cause  of  365,  Chevrier  v.  Robert,  6  Mont.   319; 

action,  not  arising  there,  nor  accruing  Lewis  v.  Hyams  (Nev.),  64  Pac.  817. 


§  24.]  ACCOUNT.  J\ 

action  against  another,  charging  him  as  a  bailiff  or  receiver.1 
At  law,  it  is  the  only  remedy  between  partners  to  settle  their 
partnership  dealings,  unless,  as  previously  stated,  there  has  been 
an  express  promise  to  account,  or  a  balance  agreed  upon.2 

This  remedy  exists  where  parties  have  been  engaged  in  a  joint 
undertaking,  and  either  one  or  all  of  them  have  received  money 
or  property  which  should  be  accounted  for  to  the  others,3  as  ten- 
ants in  common  of  real  property,4  or  of  personal  property,  as 
merchandise.5  -The  exception  in  the  statute  21  James  I.,  as  to 
merchants'  accounts,  was  confined  to  cases  where  an  action  of 
account  would  lie,  or  an  action  upon  the  case  for  not  accounting.6 
This  action,  as  a  distinctive  remedy,  has  fallen  into  disuse,  and 
although  it  still  exists  in  some  of  the  States,  yet  it  has  been 
largely  superseded   by  a  resort   to   courts   of   equity,  where   the 


1  F.  N.  B.  117,  D;    1  Story's  Eq.  Jur.  441;  Cottam  v.  Partridge,  supra. 

5  Andrews  v.  Allen.  9  S.  &  R.  (Penn  )  241;  Ozeas  v.  Johnson,  1  Binn.  (Penn.) 
191;  Young  v.  M'Cormick,  2  N.  J.  L.  663;  Willson  v.  Willson,  5  id.  791. 

3Nedvidek  v.  Meyer,  46  Mo.  600;  Kidder  v.  Rixford,  16  Vt.  169:  Mattocks  v. 
Lyman,  id.  113;   Swift  v.  Raymond,  11  id.  317. 

4  Thomas  v.  Thomas,  5  Exch.  28;  Barnum  v.  Landon,  25  Conn.  137;  Lacon 
7/.  Davenport,  16  id.  331;  Oviatt  v.  Sage,  7  id.  95;  Dresser  v.  Dresser,  40  Barb. 
(N:.  Y.)  301;  Wiswell  v.  Wilkins,  4  Vt.  137.  But  in  such  cases  it  is  necessary  to 
allege  that  the  tenant  made  defendant  has  received  more  than  his  share  of  the 
rents  or  profits  of  the  estate.  Sturton  v.  Richardson,  13  M.  &  W.  17;  Hender- 
son v.  Eason,  17  Q.  B.  701;  B?er  v.  Beer,  12  C.  B.  60.  And  in  New  York  it 
should  state  that  the  account  is  mercantile.  McMurray  v.  Rawson,  3  Hill  (N.  Y.) 
59;  and  should  also  set  forth  distinctly  all  the  grounds  upon  which  the  plaintiff 
claims  to  hold  the  defendant  to  an  accounting,  Ganaway  v.  Miller,  15  Vt.  152; 
and  the  plaintiff's  particular  inlerest  in  the  property,  Brinsmaid  v.  Mayo,  9  Vt. 
31;  and  it  should  also  appear  that  before  action  brought  the  plaintiff  had 
demanded  of  the  defendani  that  he  render  an  accounl,  Chadwick  v.  Divol,  12  id. 
.499;  and  an  account  cannot  be  enforced  until  the  joint  venture  is  ended,  either 
by  agreement  or  limitation.  Ganawav  v.  Miller,  supra.  In  Maine,  under  the 
statute,  it  is  held  thai  actions  of  account  between  co-tenants,  or  a  bill  in  equity 
therefor,  are  not  subject  to  the  six  years'  limitation,  but  to  that  of  twenty  years, 
under  section  86.     Spaulding  v.  Farwell,  70  Me.  17. 

6  Baxter  v.  Hozier,  5  Bing.  N.  C.  288. 

6  Cottam  v.  Partridge,  4  M.  &  G.  271.  And  it  was  held  in  this  case  that  an 
open  account  between  two  tradesmen  for  goods  sold  each  to  the  other,  without 
any  agreement  that  the  goods  delivered  on  the  one  side  should  be  considered 
as  payment  for  those  delivered  on  the  other,  did  not  constit  ute  such  an  account 
a<=  concerns  the  trade  of  merchandise  between  merchant  and  merchant  within 
the  exception  of  the  statute,  and  that  the  existence  of  items  in  an  open  account 
within  six  years  will  not  operate  to  take  the  previous  portion  of  the  account 
out.  of  the  statute. 


J2  STATUTES   OF   LIMITATION.  [CHAP.  II. 

rights  of  the  parties  can  be  better  adjusted  than  in  courts  of  law, 
and  where  also  the  remedy  has  been  extended  to  a  great  variety 
of  cases  not  recognized  as  coming  within  the  scope  of  the  remedy 
at  law.1  (a).  Formerly  it  was  doubted  whether  assumpsit  would 
lie  upon  an  express  promise  to  account,  or  upon  a  balance  struck 
between  partners,  etc.  ;  but  as  that  doubt  was  long  since  dis- 
pelled, assumpsit  has  also,  in  a  large  variety  of  instances,  taken 
the  place  of  this  form  of  action,2  except  that,  where  there  is  an 
express  promise  to  account,  or  a  balance  agreed-upon,  on  a  set- 
tlements of  partnership  accounts,  assumpsit  will  not  lie,  but  resort 
must  be  had  to  an  action  of  account,  or  to  a  court  of  equity.3 
Thus,  where  a  balance  was  struck  in  favor  of  one  partner,  on  the 
books  of  the  firm,  after  his  death,  and  similar  balances  were 
struck  in  favor  of  other  partners,  it  was  held  that  this  was  only 
evidence  of  the  deceased  partner's  standing  with  the  firm,  and 
not  of  his  standing  with  his  partners.4  In  Massachusetts,  assump- 
sit is  substituted  for  account;  and  in  cases  where  partnership 
accounts  are  involved,  the  court  can  appoint  an  auditor  to  take 
the  accounts,  giving  to  the  parties  all  the  advantages,  without  the 
disadvantages,  of  the  action  of  account.5  This  form  of  action 
has  been  extended  in  some  of  the  States,  so  as  to  embrace  other 
matters  than  accounts  between  partners,  and  to  compel  an 
accounting  in  all  instances  where  a  person  can  properly  be  charged 
as  bailiff  and  receiver  of  the  plaintiff.6     But  while  this  remedy 

1  i  Story's  Eq.  Juris.  442;  Bacon's  Abr.,  tit.  Accompt;  Lockey  v.  Lockey, 
Prec.  Ch.  518. 

*  1  Story's  Eq.  Juris.  442;  Tomkins  v.  Wiltshire,  5  Taunt.  431 ;  Buell  v.  Cole, 
54  Barb.  (N.  Y.)  353;  Succession  of  Dalhande,  21  La.  Ann.  3. 

8  Buell  v.  Cole,  supra  ;  Ferguson  v.  Wright,  61  Penn.  Si.  258. 

*  Ferguson  v.  Wright,  supra;  Wetmore  v.  Woodbridge,  Kirby  (Conn.)  164. 

6  Fanning  v.  Chadwick,  3  Pick.  (Mass.)  424.  But  account  may  be  brought  if 
the  party  elects  to  do  so.     Fowle  v.  Kirklar.d,  18  Pick.  (Mass.)  299. 

•Adams  v.  Corbin,  3  Vt.  372;  Smith  v.  Woods,  id.  485;  Swift  v.  Raymond,  II 
id.  317;  Bertine  v.  Varian,  1  Edw.  Ch.  (N.  Y.)  343.  See  Green  v.  Johnson,  3  G. 
&  J.  (Md.)  389,  where  it  was  held  that  account  is  the  only  action  that  can  be 

(a)  The  liability  to  an  action  of  ac-  would  begin  to  run.  And  although 
count  has  lon^  been  regarded  as  differ-  ihe  action  of  account  has  been  abolished 
ent  from  a  bailment  on  the  one  hand,  in  Massachusetts,  and  an  action  of  con- 
anrl  from  debt  or  an  absolute  liability  tract  is  now  necessarily  resorted  to,  yel 
for  money  on  the  other,  and  more  the  nature  of  the  original  duty,  es- 
nearly  resembles  the  liability  of  a  trus-  pecially  in  its  relation  to  demand  and 
tee  f  jr  an  identified  fund.  After  a  refusal,  is  not  affected  by  the  disappear- 
dcman'l  and  refusal,  debt  or  assumpsit  ance  of  the  action.  Holmes,  J.,  in  Rob- 
would  lie,  and  the  statute  of  limitations  inson  v.   Robinson,  173  Mass.  233,  240. 


§  25-]  DEBT.  73 

cannot  be  said  to  be  obsolete,1  yet,  as  equity  has  concurrent 
jurisdiction  with  courts  of  law  for  the  settlements  of  partnership 
transactions,  and  most,  at  least,  of  the  matters  for  which  the  com- 
mon-law action  of  account  lies,  and  as  courts  of  equity  have  more 
ample  powers  than  courts  of  law  in  this  respect,  the  remedy  at  law 
will  seldom  be  resorted  t'o,  except  in  those  States  where  by  stat- 
ute express  provision  is  made  therefor.2  There  are  instances, 
however,  where  the  remedy  at  law  must  be  pursued,  and  equity 
will  not  entertain  a  bill  to  settle  matters  involved  in  this  action ;s 
but  the  practitioner  will  find  no  difficulty  in  ascertaining  which 
court  to  invoke  in  a  given  case. 

SEC.  25.  Debt.  —  An  action  of  debt  where  "grounded  upon 
any  lending  or  contract  without  specialty,"  is  expressly  within 
the  statute  of  21  James  I.,  §  3;  in  most  of  the  statutes  of  this 
country,  even  where  this  section  is  not  adopted,  the  distinction 
between  simple  contracts  and  specialties  is  observed,  and  this 
action,  even  though  not  preserved  in  form,  exists  in  substance, 
and  is  generally  provided  for  in  the  limitation  acts,  either 
expressly  or  otherwise.4     Debt  lies,  in  all  instances,  where  a  sum 

brought  against  a  guardian  as  such,  except  on  his  bond.  In  Griggs  v.  Dodge, 
2  Day  (Conn.)  28,  it  was  held  a  proper  remedy  where  personal  property  is 
limited  over  by  way  of  remainder,  after  the  determination  of  the  particular 
estate.  In  Adams  v.  Corbin,  3  Vt.  372,  it  was  held  a  proper  remedy  by  a  sur- 
viving administrator  against  the  representative  of  a  deceased  co-administrator 
for  property  of  the  estate  which  came  to  the  hands  of  the  latter.  So  it  is  a 
proper  remedy  by  a  cestui  que  trust  against  a  trustee  of  lands  who  has  received 
the  profits.     Dennison  v.  Goehring,  7  Penn.  St.  175. 

1  Griffith  v.  Willing,  3  Binn.  (Penn.)  397;  Travers  v.  Dyer,  16  Blatchf.  (U.  S. 
C.  C.)  178;  Stewart  v.  Kerr,  1  Morr.  (Iowa)  240;  Neal  v.  Keel,  4  T.  B.  Mon. 
Ky.)  162. 

'Tyler  v.  Nelson,  14  Gratt.  (Va.)  214;  Fraser  v.  Phelps,  4  Sandf.  (N.  Y.) 
682;  Andrews  v.  Murphy,  12  Ga.  431;  Broome  v.  Alston,  8  Fla.  307;  Norwich, 
etc.,  R.  R.  Co.  v.  Storey,  17  Conn.  364;  Gloninger  v.  Hazard,  42  Penn.  St.  389. 

'Walker  v  Cheever,  35  N.  H.  339;  Garland  v.  Hull,  21  Miss.  76;  Cummins  v. 
White,  5  Blackf.  (Ind.)  356;  Printup  v.  Mitchell,  17  Ga.  558. 

4  In  Maine,  "  actions  of  debt  founded  upon  a  contract  or  liability  not  under 
seal."  Rev.  Stats.  (18S3),  ch.  Si,  §  82,  cl.  1.  In  Vermont,  "  all  actions  of  debt 
founded  upon  a  contract,  obligation,  or  liability,  not  under  seal."  §  1199.  In 
New  Hampshire,  all  personal  actions,  except  for  trespass  to  the  person  and 
defamatory  words,  shall  be  brought  in  six  years,  and  this  includes  debt,  except 
debt  "  founded  upon  judgments,  recognizances  and  contracts  under  seal," 
which  may  be  Drought  within  twenty  years.  In  Alabama,  all  actions  upon 
judgments,  §  3224,  and  actions  founded  upon  any  contract  or  writing 
under  seal,  §  3225;  and  actions  upon  contracts,  in  writing,  not  under  seal, 
§  3226.     In  Massachusetts,  this  form  of   action  is  abolished   by    statute,  and 


74  STATUTES   OF   LIMITATION.  [CHAP.   II. 

certain  is  due,  or  which  is  capable  of  being  reduced  to  a  certainty 
without  any  future  valuation  to  ascertain  or  settle  its  amount, 
and  to  that  extent  will  lie  to  recover  upon  simple  contracts  as 
well  as  assumpsit.1  It  lies  for  the  recovery  of  a  sum  certain, 
although    it   arises   from   a   collateral   undertaking;2  as   where   a 

an  action  upon  the  contract  or  obligation  freed  from  the  technicalities  of 
this  form  of  action  is  substituted.  In  Connecticut,  no  action  "  of  debt  on  book 
or  simple  contract."  In  Rhode  Island,  the  provision  is  virtually  the  same  as 
2i  James  I.,  except  the  words  "  lending  or  "  are  omitted.  In  New  Jersey,  sub- 
stantially the  same  as  21  James  I.;  so  in  Pennsylvania.  In  Delaware,  by  §  6, 
actions  of  debt  are  barred  in  three  years.  In  Maryland,  this  action  is  expressly 
provided  for  in  §  1  of  art.  69  of  the  Code.  In  Virginia,  this  action  is  embraced 
under  §  8,  c.  146.  In  North  Carolina,  this  action  is  mainly  covered  by  §§  31, 
34.  In  South  Carolina,  this  action  is  covered  by  £§  113,  114,  c.  122,  Rev.  Stat, 
of  South  Carolina.  In  Mississippi,  this  action  comes  under  general  clause, 
£  2669,  Rev.  Code,  p.  720.  In  Tennessee,  this  action  is  covered  by  §  2775.  In 
Kentukcy,  this  class  of  actions  is  included  under  §§  I  and  2  of  art.  3,  Gen.  Stat., 
c.  71.  In  Ohio,  an  action  "  upon  a  contract  not  in  writing,"  in  six  years,  and 
upon  a  specialty  or  any  agreement,  contract,  or  promise  in  writing,  in  fifteen 
years.  In  Indiana,  actions  on  accounts  and  contracts  not  in  writing  in  six 
years,  and  upon  those  in  writing  in  twenty  years.  In  Illinois,  special  provision 
as  to  actions  on  contracts  exists.  In  Michigan,  "  all  actions  of  debt  founded 
upon  any  contract  or  liability  not  under  seal,"  six  years.  In  Wisconsin,  "  an 
action  upon  any  bond,  etc.,  or  other  contract,  whether  sealed  or  otherwise,"  six 
years;  upon  a  sealed  instrument,  "  when  the  cause  of  action  accrued  in  this 
State,"  ten  years.  In  Missouri,  "  an  action  founded  upon  any  writing,  sealed 
or  unsealed,"  ten  years.  In  Arkansas,  this  action  comes  under  the  general 
clause,  and  not  being  specified,  is  barred  in  five  years.  In  Florida,  this  class 
of  actions  come  under  §§  10,  12,  c.  144.  In  Texas,  the  limitation  of  actions  of 
debt  upon  written  contracts  is  four  years,  and  upon  contracts  not  in  writing  in 
two  years.  In  Iowa,  this  action  is  not  named,  but  comes  under  divs.  3,  4  of 
§  1659  °f  ,ne  Code,  making  the  bar  to  the  action  on  unwritten  contracts  five 
years,  and  on  written  contracts,  judgments,  etc.,  ten  years.  In  California,  the 
action  is  not  named,  but  comes  within  the  provisions  of  the  statute,  and  the 
period  of  limitation  varies  from  one  to  five  years,  according  to  the  nature  of 
the  claim  on  which  it  is  founded.  In  Oregon,  this  action  comes  under  the  pro- 
visions of  §  6.  In  Minnesota,  the  limitations  imposed  are  contained  in  §  6.  In 
Nevada,  §  16  applies  to  this  form  of  action.  In  Nebraska,  §§  10,  II,  and  15 
apply  to  this  form  of  action.  In  West  Virginia,  this  class  of  actions  is  embraced 
under  £  6,  c.  119  This  form  of  action,  however,  is  retained  in  but  few  of  the 
Stiles,  and  not  where  there  are  codes. 

1  In  StOCkwell  v.  United  States,  13  Wall.  (U.  S.)  531,  it  was  held  that  it  would 
Me  to  recover  a  penalty  under  the  revenue  laws.  United  States  v.  Colt,  Pet. 
(U,  S.)  145;  Dillingham  v.  Skein,  Hemp.  (U.S.)  161;  Bank  of  Circleville  v. 
[glehart,  6  McLean  (U.  S.)  568. 

•'  Home  v.  Semple,  3   McLean  (U.  S.)  150;  Cato  v.  Gill,  1   N.  J.  L.  ir.      Hut  it 
nol   lie   upon  a  collateral  promise  to  pay  the  debt  of  another.     Gregory!/, 
i  ho m son,  31  N.  J.  L.  1G0. 


§  25.]  DEBT.  75 

penalty  is  given  by  statute,  and  no  other  remedy  is  provided  for 
its  recovery,1  {a)  although  the  amount  thereof  is  uncertain  and 
subject  to  assessment  by  a  jury.2  It  lies  for  the  recovery  of  a 
reward  offered  for  the  finding  of  lost  or  stolen  goods,  or  for  any 
purpose,3  upon  the  judgment  of  an  inferior  court  not  of  record,4 
upon  an  express  contract  in  writing  for  the  payment  of  money,5 
as  by  the  payee  or  indorsee  of  a  bill  of  exchange  against  the 
acceptor,6  or  by  the  indorsee  against  a  remote  indorser,7  by  the 
assignee  against  the  assignor  of  a  note  where  the  maker  is  insol- 
vent,8 to  recover  money  advanced  upon  a  special  contract  which 
has  been  rescinded,9  or  where  the  price  for  goods  has  been  paid 
but  they  are  not  delivered,10  or  upon  an  open  account  for  goods 
sold  and  delivered,11  for  services  rendered  under  a  contract  fully 
performed,  or  even  when  not  fully  performed  in  all  respects,  if 
the  departure  from  its  terms  is  assented  to  by  the  parties;  n  and 
generally  debt  upon  a  simple  contract  will  lie  in  all  instances 
where  indebitatus  assumpsit  will  lie,  to  wit,  where  an  express  con- 
tract, not  under  seal,  has  been  performed  upon  the  part  of  the 
plaintiff,  according  to  its  terms,  so  that  nothing  remains  to  be 
done  to  satisfy  it  but  for  the  defendant  to  pay  money  in  com- 
pensation.13    Indeed,  originally   debt   was  the   ordinary   remedy 

1  United  States  v.  Bougher,  6  McLean  (U.  S.)  277. 

2  United  States  v.  Colt,  supra. 
3Furman  v.  Parke,  21  N.  J.  L.  310. 

4TindalJ  v.  Carson,  16  N.  J.  L.  94;  Green  v.  Fry,  1  Cr.  (U.  S.  C.  C.)  137. 

5  Kirk  v.  Hartnun,  63  Penn.  St.  97. 

6  Home  v.  Semple,  supra;  Kirkman  v.  Hamilton,  6  Pet.  (U.  S.)  20. 

I  Home  v.  Semple,  supra.  But  this  proposition  is  doubted.  Weiss  v.  Mauch 
Chunk  Iron  Co.,  58  Penn.  St.  295. 

8  Pyle  v.  M'Monagle,  2  Harr.  (Del.)  468. 
s  Jenkins  v.  Thompson,  20  N.  H.  457. 

10  DuboU  v.  Delaware,  4  Wend.  (N.  Y.)  285;  Byers  v.  Bostwick,  2  Mill's  (S.  C.) 
Const.  75;   Kimball  v.  Cunningham,  4  Mass.  504. 

II  Collins  v.  Johnson,  Hemp.  (U.  S.  C.  C.)  279. 

12  Allen  v.  McNew,  8  Humph.  (Tenn.)46;  Clark  v.  Roop,  15  Ark.  172;  Laduc 
z.  Seymour,  24  Wend.  (N.  Y.)  60. 

13  Perkins  v.  Hart,  n  Wheat.  (U.  S.)  237;  Dukes  v.  Leowie,  13  Ala.  457; 
Wright  v.  Morris,  15  Ark.  444;  Bayard  v.  McLane,  3  Harr.  (Del.)  139:  Hancock 
v.  Ross,  18  Ga.  364;  Adlard  71.  Muldoon,  45  111.  193;  Ridgeley  v.  Crandall,  4 
Md.  435;  Fowler  v.  Austin,  2  Miss.  156;  Bomeisler  v.  Dobson,  5  Whart.  (Penn.) 
308;  Mattocks  v.  Lyman,  16  Vt.  113;  Harris  v.  Ligget,  1  W.  &  S.  (Penn.)  301; 
Hunter  v.  Waldron,  7  Ala.  753;  Baker  v.  Corey,  19  Pick.  (Mass.)  496;  Ames  v. 

(a)  See  Morgan  v.  Hedstrom,  164  N.  Y.  224. 


76  STATUTES   OF   LIMITATION.  [CHAP.   II. 

upon  simple  contracts,1  and  the  action  of  assumpsit  did  not  come 
into  general  use  until  after  Slade's  Case,  in  1603. 2  Debt  lies 
upon  a  specialty  in  many  cases,  but  in  those  instances  the  statute 
applicable  to  simple  contracts  does  not  apply,3  but  when  founded 
on  contracts  not  under  seal  the  statute  does  apply.4  In  Massa- 
chusetts the  action  of  debt  has  been  abolished  by  statute;5  and 
in  many  others  it  does  not  exist  in  form,  although  the  rules 
applicable  thereto  may  apply  in  cases  where,  under  the  common- 
law  practice,  it  would  be  the  proper  remedy.  Especially  is  this 
the  case  in  those  States  where  the  practice  is  regulated  by  codes. 
Sec.  26.  Covenant  is  an  action  upon  a  sealed  instrument  or 
specialty,  and  never  lies  upon  a  simple  contract.  Upon  sealed 
instruments  a  party  frequently  has  his  choice  of  remedies,  between 
debt  and  covernant,  although  in  many  instances,  especially  where 
the  action  is  for  unliquidated  damages,  covenant  alone  will  lie.6 
If  an  instrument  under  seal  is  varied  by  a  contract  not  under  seal 
indorsed  thereon,  the  whole  instrument  becomes  a  simple  con- 
tract ;  assumpsit  is  the  proper  remedy  and  covenant  will  not  lie 
thereon,  and  the  statute  begins  to  run  from  the  date  of  the 
indorsement.7  In  general,  the  action  of  covenant  may  be  said  to 
be  the  only  remedy  strictly  confined  to  specialty  debts. 

Le  Rue,  2  McLean  (U.  S.  C.  C.)  216;  Glover  v.  Collins,  18  N.  J.  L.  232;  Berlrand 
v.  Ryrd.  5  Ark.  651;  Brown  v.  Ralston,  9  Leigh  (Va.)  532;  Carson  v.  Allen,  6 
Dana  (Ky.)  395;  Cooper  v.  Bickford,  3  Grant  (Penn.)  Cas.  69,  Hale  v.  Handy. 
26  N.  H.  (6  Fost  )  206;  Ingram  v.  Ashmore,  12  Mo.  574;  Sykes  v.  Summerel,  2 
Browne,  (Penn.)  225;  Kelly  v.  Foster,  2  Binn.  (Penn.)  4;  Jewell  v.  Schroeppel, 
4  Cow.  (N.  Y.)  564;  Causten  v.  Burke,  2  H.  &  G.  (Md.)  295;  Miles  v.  Moodie,  3 
S.  &  R.  (Penn.)  211;  Snyder  v.  Castor,  4  Yeates  (Penn.)  353;  Cochran  v.  Tatum, 
3  T.  B.  Mon.  (Ky.)  405;  Feeler  v.  Heath,  11  Wend.  (N.  Y.)  477;  Williams  v. 
Sherman,  7  id.  ioq;  Way  v.  Wakefield,  7  Vt.  228;  Felton  v.  Dickinson,  10  Mass. 
287;  Bank  of  Columbia  v.  Patterson,  7  Cr.  (11.  S.)  299;  Coursey  v.  Covington,  5. 
H.  &  J.  (Md.)  45;  Dubois  v.  Delaware,  etc.,  Canal  Co.,  4  Wend.  (N.  Y.)  285; 
Wood  v.  Gee.  3  McCord  (S.  C.)  421;  Stout  v.  Gallagher,  2  A.  K.  Mar.  (Ky.)  160; 
Speake  v.  Sheppard,  6  Har.  &  J.  (Md.)  81;  Bagley  v.  Bates,  Wright  (Ohio)  705. 
1  Wilkinson  on  Limitations,  12;  3  Blackstone,  341. 

*  Slade's  Case,  4  Coke,  91. 

3Cockram  v.  Welby,  2  Mod.  212;   White  v.  Parkin,  12  East,  578. 
4Cockram  v.  Welby,  supra. 
6  Pub.  Stats.,  c.  167,  §  1. 

*  Browne's  Actions  at  Law,  353;  Comyns's  Dig.,  Pleader. 

1  llvfl  ville  Co.  v.  Eagle  R.  R.  &  S.  Co.,  44  Vt.  395;  Head  v.  Wadham,  1  East, 
619;  Kim;  v,  Beeston,  3  T.  R.  592.  In  Lor i rig  v.  Whittemore,  13  Gray  (Mass.) 
22S,  where  an  agreement  to  vary  a  sealed  instrumeni  was  indorsed  thereon, 
and    not   sealed,  and   subsequently  a  sealed  agreement   to  extend  the  time  was 


§  27-J  ADMIRALTY  —  CRIMES.  TJ 

Sec.  27.  Suits  in  Admiralty.  —  In  England  it  was  formerly 
doubted  whether  a  suit  in  admiralty  for  mariner's  wages  was 
within  the  Stat.  21  James  I.,  it  being  said  that  it  was  a  matter 
properly  determinable  at  common  law,  and  that  allowing  the 
admiralty  jurisdiction  therein  was  only  a  matter  of  indulgence; 1 
but  whatever  doubt  may  there  have  existed  upon  this  subject 
was  put  at  rest  by  4  and  5  Ann.  c.  16,  which  provides  that  "  all 
suits  and  actions  in  the  court  of  admiralty  for  seamen's  wages 
shall  be  commenced  within  six  years  after  the  cause  of  such 
action  shall  occur  and  not  after."  In  this  country  it  is  held  that 
State  acts  of  limitations  do  not  apply  to  such  actions  in  our  court 
of  admiralty,2  nor  does  the  statute  of  Anne  above  referred  to.3  (a) 
But  courts  of  admiralty  will  not  entertain  stale  demands,  and 
twelve  years'  delay  unexplained  was  held  sufficient  to  bar  such  a 
suit.4 

SEC.  28.  Crimes. — At  common  law  there  is  no  limitation  to 
criminal  proceedings  by  indictment.  This  question  arose  where  a 
person  who  had  taken  a  bribe  at  an  election  was  called  upon  to 

indorsed  thereon,  it  was  held  that  the  last  agreement  under  seal  acted  upon  and 
gave  the  force  of  a  specialty  to  the  last  unsealed  agreement,  and  brought  the 
whole  under  the  head  of  a  specialty.  See  also  Ake's  Appeal,  74  Penn.  St.  116. 
In  Georgia  in  Milledge  v.  Gardner,  29  Ga.  700,  it  was  held  that  an  unsealed 
agreement  indorsed  on  a  sealed  instrument  is  to  be  treated  as  a  part  of  the 
original  instrument  and  as  though  under  seal. 

1  Bacon's  Abr.,  Lim.  (D)  4. 

,J  Willard  v.  Dorr,  3  Mas.  (U.  S.)  91;  Brown  v.  Jones,  2  Gall.  (U.  S.)  477;  The 
Mary,  1  Paine  (U.  S.)  180. 

3  Willard  v.  Dorr,  supra;  The  Mary,  supra, 

4  Willard  v.  Dorr,  supra;  Gay  v.  Allen.  2  W.  &  M.  (U.  S.)  303;  The  Sarah 
Ann,  2  Sum.  (U.  S.)  286;   Pitman  v.  Hooper,  3  id.  286. 

(a)  The  Federal  courts  of  admiralty,  Queen  of  the  Pacific,  61  Fed.  Rep.  213, 
as  they  act  upon  equitable  principles,  21S;  The  Queen,  78  id.  155.  There 
also  follow,  by  analogy,  the  local  stat  being  no  statute  of  limitations  in  ad- 
utes  of  limitations,  when  no  special  miralty,  and  these  courts  being  gov- 
equitable  considerations  exist  against  erned  by  the  maritime  law  and  the 
their  application.  Scull  v.  Raymond,  legislation  of  Congress,  no  fixed  lime 
18  Fed.  Rep.  547;  Southard  v.  Brady,  of  laches  in  inflexibly  established,  ex. 
36  id.  560;  Nesbit  v.  The  Amboy,  id.  cept  that,  when  a  maritime  lien  is  to 
•925.  In  these  courts  an  important  ele-  be  enforced  to  the  detriment  of  a  pur- 
ment  in  the  question  of  laches  is  chaser  for  value  without  notice  of  the 
whether  by  change  of  circumstances  lien,  the  defense  will  be  held  valid 
the  delay  has  been  injurious  to  the  under  a  shorter  time  than  usual  and  a 
oiher  party.  Coburn  v.  Factors'  &  more  rigid  scrutiny  of  the  circum- 
Traders'  Ins.  Co.,  20  Fed.  Rep.  644;  stances.  The  Key  West,  14  Wall.  653, 
The  Li  I  lie,  42  id.  237.  This  is  a  ques-  659;  Reed  v.  Ins.  Co.,  95  U.  S.  23; 
tion  of  evidence,  and  depends  upon  the  Pacific  Coast  Steamship  Co.  v.  Bancroft- 
sound    discretion    of    the    court.     The  Whitney  Co.,  94  Fed.  Rep.  180,  189. 


78  STATUTES   OF   LIMITATION.  [CHAP.   II. 

testify  to  the  fact.  By  the  Stat.  2  Geo.  II.  c.  24,  a  civil  action 
therefor  was  barred  in  two  years,  and  this  period  had  elapsed  ; 
but  Lord  Ellenborough  cautioned  him  that  although  a  civil  action 
aganist  him  for  the  crime  was  barred,  yet  there  was  no  limitation 
at  common  law  to  a  criminal  prosecution  by  indictment,  and, 
therefore,  that  he  was  not  bound  to  answer  any  question  which 
might  criminate  him.1  (a) 

1  Dover  v.  Maestacr,  5  Esp   92. 

(a)  See  supra,  §  14,  n.  (a).     In  crim-  of    under    a    plea    of    "  not    guilty." 

inal    proceedings   the    defense   of    the  Boughn  v.  State,  44  Neb.  889;  State  v. 

statute    of    limitations    need    not    be  Rook,  61  Kan.  382. 
pleaded   specially;   it   may   be   availed 


§  29.]  SPECIALTIES.  79 

CHAPTER  III. 

Specialties. 

Sec.  29.  What  are.  Sec.  37.  Special   Statutory  Provisions 

30.  Judgments.  relating  to  Specialties. 

31.  Statutory  Provisions  as  to.  38.  When  Concurrent   Remedy  is 

32.  Rent,  Actions  for.  given  by  Statute. 

33.  Avowry  for  Rent.  39.  Test  as  to   whether  Specialty 

34.  Foreign  Judgments.  or  not. 

35.  Mixed  Claims,  Instance  of.  40.  Actions  for  Distributive  Share 

36.  Liability  created  by  Statute.  of  Estate. 

40a.   Patents. 

Sec.  29.  What  are.  —  All  instruments  under  seal,  of  record, 
and  liabilities  imposed  by  statute,  are  specialties,  within  the 
meaning  of  the  Stat.  21  James  I.,  "without  specialty."  It 
becomes  important  to  know  what  classes  of  obligations  come 
under  this  head,  because  under  the  Stat.  21  James  I.  specialties 
are  not  embraced,  and  to  a  great  extent  such  also  is  the  case  in 
the  statutes  of  the  several  States  of  this  country.  In  England, 
by  Stat.  3  and  4  Wm.  IV.  c.  42,  all  specialties  are  barred  in 
twenty  years;  and  even  though  the  statute  is  not  pleaded,  it  is 
said  that  the  law  raises  a  presumption  of  payment  from  the  lapse 
of  that  period  of  time,  or  other  circumstances  which  is  equally  as 
effective  as  a  bar  as  the  statute ; *  and  in  some  of  the  States,  as 

1  Best  on  Presumptions,  188.  In  Fishar  v.  Prosser,  1  Cowp.  217,  it  was  held 
that,  after  a  long  time,  in  this  case  thirty-six  years,  a  claim  not  within  the  stat- 
ute, as  the  uninterrupted  possession  by  one  tenant  in  common  without  demand 
made  for  or  any  accounting,  would  warrant  a  jury  in  presuming  a  demand. 
See  also  Mayor  v.  Horner,  1  Cowp.  102,  where  it  was  held  that  from  the  lapse 
of  a  long  time  a  grant  might  be  presumed  from  the  crown.  See  also  Eldridge 
v.  Knott,  id.  214,  where  it  was  held  that  mere  length  of  time  short  of  the  period 
fixed  by  the  statute,  and  unaccompanied  by  any  circumstances,  is  not  of  itself 
a  sufficient  ground  to  presume  a  release  or  extinguishment  of  a  quit-rent.  See 
1  Burr.  434,  cited  by  the  court,  where  payment  of  a  bond  was  presumed  within 
eighteen  years;  but  in  that  case,  as  in  Goodright  v.  Straphan,  1  Cowp.  201,  the 
presumption  was  founded  upon  the  circumstances,  and  not  on  lapse  of  time 
alone.  Lord  Mansfield,  in  Eldridge  v.  Knott,  says:  "  The  statute  of  limita- 
tions is  a  positive  bar  from  length  of  time,  and  operates  so  conclusively  that, 
although  the  jury  and  the  court  are  satisfied  that  the  claim  set  up  subsists,  yet 
they  are  bound  by  the  statute  to  defeat  the  claim.  There  are  many  cases  not 
within  the  statute,  where,  from  a  principle  of  quieting  possession,  the  court  has 
thought  that  a  jury  should  presume  anything  to  support  a  length  of  possession. 


8o  STATUTES   OF   LIMITATION.  [CHAP.   III. 

will  be  seen  by  the  synopsis  below,  this  presumption  is  raised 
thereby.  All  instruments  under  seal,  wherever  executed,  are 
specialties  within  the  meaning  of  the  statute,  as  bonds,  deeds, 
leases,  and  all  instruments  executed  in  this  manner,  and  even 
notes,  or  any  contract  sealed  by  the  parties,  whatever  its  nature, 
provisions,  or  purpose,  come  under  this  head.1  (a)  As  to  matters 
of  record,  none  are  to  be  regarded  as  such,  unless  made  so  by 
the  law  of  and  within  the  particular  jurisdiction  where  the  remedy 
is  sought. 

Sec.  30.  Judgments. — A  judgment  obtained  in  the  United 
States  court,  or  in  the  courts  of  the  State  where  the  remedy  is 
sought,  is  a  specialty  within  the  provisions  of  the  statute ; 2  but 
a  foreign  judgment,  or  one  obtained  in  any  other  State  or  country, 
is  a  mere  simple-contract  debt,  and  as  such  is  barred  by  the 
statute  of  the  forum; 3  (#)  nor  unless  the  parties  were  personally 
served,  or  submitted  to  the  jurisdiction  of  the  court,  is  it  more 

Lord  Coke  says  somewhere  that  an  act  of  Parliament  may  be  presumed;  and  of 
late  it  has  been  held  that,  even  in  the  case  of  the  crown,  which  is  not  hound  by 
the  statute  of  limitations,  a  grant  may  be  presumed  from  great  length  of  pos- 
session.    See  Hull  v.  Horner,  Cowp.  102. 

1  Penrose  v.  King,  1  Yeates  (Penn.)  344;  Clark  v.  Hopkins,  7  Johns.  Ch. 
(N.  Y.)  556:  Summerville  v.  Holliday,  1  Watts  (Penn.)  507.  Judgment  bonds 
are  not  within  the  statute,  Acheson  v.  Shenk,  2  Leg.  Gaz.  (Penn.)  361;  nor 
administration  bonds  (original).  Miltenberger  v.  Com.,  14  Penn.  St.  71;  Com. 
v.  Patterson,  8  Watts  (Penn.)  515. 

5  As  to  judgments  in  the  United  States  courts  and  holding  them  conclusive, 
see  Thompson  v.  Lee  County,  22  Iowa,  206;  Pigot  v.  Davis,  3  Hawks  (N.  C.) 
•*5;  Pease  v.  Bennett,  17  N.  H.  124;  Dorsey  v.  Maury,  18  Miss.  298;  Barney  v. 
Patterson,  6  H.  &  J.  (Md.)  182;  Durant  v.  Essex  Co.,  8  Allen  (Mass.)  103; 
Arnold  v.  Booth,  14  Wis.  1S0;  Buchanan  v.  Biggs,  2  Yeates  (Penn.)  232;  Shields 
v.  Taylor.  21  Miss.  127. 

3  Walker  v.  Witter,  1  Doug.  1;  Darby  v.  Mayer,  n  Wheat.  (U.  S.)46s;  Piatt 
v.  Oliver,  2  McLean  (U.  S.)  267.  In  Arkansas,  an  action  upon  a  foreign  judg- 
ment is  limited  to  five  years.     Brian  v.  Tims,  10  Ark.  597. 

('/)  A  sealed   promissory  note  is  not         (/')  When  the  local  statute  of  limita- 

within    the  six-years'  provision  of   the  tions  comprises  only  judgments  of  the 

Alab'ima    statutes,    which    applies    to  particular  State,  the  constitutional  re- 

"  actions  founded  on  a  promise  in  writ-  quirement  that  full  faith  and  credit  be 

ing  not  under  seal."    Garner  v.  Toney,  given  to  proceedings  in  other  States  re- 

[07    Ala.    352.     See  llance  7'.  Holiman  quires  the  judgment  of  a  sister  State  to 

(Ark  j,  60  S.  W.   730.  be    treated,    not    as    a    simple-contract 

An  award  of  arbitrators,  being  in  the  debt,  but   as  a  debt  of  record,  against 

nature  of   a   judgment,   is  a   specialty  which  the  only  presumption  available 

and  not  a  matter  of  accounting,  under  i*  that  of   payment   after  the   lapse  of 

limitati  in    statutes.     Searles  v.    Lum,  twenty  years.     Little  v.  McVey  (N.J. 

bi  Mo.  App.  007.  L.),  47  All.  61. 


§  3°]  SPECIALTIES.  8 1 

than  prima  facie  evidence  of  a  debt,1  and  the  statute  applies  to 
such  judgments,  unless  otherwise  provided  therein.2  (a)  In  those 
States  in  which  the  third  section  of  Stat.  21  James  I.  is  in  force 
this  rule  prevails,  as  it  does  in  all  of  them  as  to  judgments  of 
courts  outsides  the  United  States;  but  in  many  of  the  States  by 
statute  "judgments  or  decrees  of  some  court  of  record  of  the 
United  States,  or  of  this  or  some  other  of  the  United  States," 
are  all  put  upon  the  same  footing,  and  excepted  from  the  opera- 
tion of  the  statute  applicable  to  simple  contracts;  as  in  Maine, 
Vermont,  Massachusetts,  New  York,  Michigan,  Arkansas,  Ala- 
bama, Iowa,  Wisconsin,  California,  Oregon,  Minnesota  and 
Nevada.  In  Nebraska,  all  actions  upon  a  specialty,  or  "  upon 
any  agreement,  contract,  promise  in  writing  or  foreign  judgment," 
are  barred  in  four  years.  In  most  of  the  other  States  the  statutes 
are  silent  as  to  judgments,  especially  judgments  of  the  courts  of 
other  States.  In  New  Hampshire,3  *''  actions  of  debt  founded 
upon  judgment  or  recognizance,  or  upon  any  contract  under 
seal,"  are  barred  in  twenty  years.  In  Connecticut,  bonds  or 
other  written  obligations  under  seal  and  notes  not  negotiable  are 
barred  in  seventeen  years;  and  no  special  provision  exists  as  to 

1  Wood  v.  Watkinson,  17  Conn.  500;  Davidson  v.  Sharpe,  6  Ired.  14;  Arndt 
v.  Arndt,  15  Ohio,  33;  Welch  v.  Sykes,  8  111.  197;  Cheriot  v.  Foussat,  3  Binn. 
(Penn.)  220;  Sieel  v.  Smith,  7  W.  &  S.  (Penn.)447;  Harness  v.  Green,  20  Mo. 
316;  Ctmeron  v.  Wurtz,  4  McCord  (S.  C.)  278;  Hubbell  v.  Coudrey,  5  Johns. 
(N.  Y.)  132;  Turner  v.  Lambeth,  2  Tex.  365. 

5  Bishop  v.  Sanford,  15  Ga.  1;  Van  Alstyne  v.  Lemons,  10  111.  394;  Hubbell  v. 
Coudrey,  supra;  Pease  v.  Howard,  14  Johns.  (N.  Y.)  479;  Walker  v.  Witter,  1 
Doug.  1;  Hay  v.  Fisher,  2  M.  &  W.  722;  Kimball  v.  Whitney,  15  Ind.  250. 
While  in  many  States  judgments  of  other  States  are  put  on  the  same  footing  as 
domestic  judgments,  yei  even  in  some  of  the  States  where  no  such  provision 
exists,  the  judgments  of  courts  of  record  of  sister  States  are  held  binding  as 
judgments  in  all  the  States,  and  operate  as  a  merger  of  the  original  claim. 
Napier  v.  Gidiere,  Speers  Ch.  (S.  C.)  215;  Clay  v.  Clay,  13  Tex.  195:  Keith  v. 
Estell,  g  Port.  (Ala.)  669;  Latourette  v.  Cook,  3  Greene  (Iowa)  593;  Moore  v. 
Paxton,  1  Hemp.  (U.  S.)  51.  In  Ohio  any  judgment  of  the  courts  of  a  sister 
State,  whether  of  a  court  of  record  or  not,  is  treated  as  a  specialty.  Stockwell 
v.  Coleman,  10  Ohio  St.  33.  And  see  Mahurin  v.  Bickford,  8  N.  H.  54,  where 
it  was  held  that  a  judgment  of  a  justice  of  the  peace  rendered  in  another  State 
was  not  within  the  statute.  See  Otway  v.  Ramsey,  Slra.  1090;  Dieffenbach  v. 
Roch,  112  N.  Y.  621. 

3  Rev.  Stat.,  c.  i8t,  §  5.     See  Appendix. 

(n)   Under  §  3  of  3  &  4  Wm.  IV.  c.  27,  remedy,   saving    the    arrears   of    rent 

■an  unsatisfied  judgment  for  rent  is  not  from  being   barred    by    the    statute    of 

a  satisfaction  or  extinguishment  of  the  limitations.      Irish    Land   Commission 

debt,   but   is   simply   a    merger   of   the  v.  Junkin,  24  L.  R.  Ir.  40. 

[stats,  ok  LlM.  — 6]  » 


82  STATUTES   OF   LIMITATION.  [CHAP.   III. 

judgments  nor  is  there  any  general  provision  relative  thereto, 
thus  leaving  them  to  the  common-law  presumption  arising  from 
the  lapse  of  twenty  years.  In  Rhode  Island,  judgments  come 
under  the  head  of  specialties,  and  under  the  general  clause  of  sec. 
I,  like  all  specialties,  are  barred  in  twenty  years.  In  New  York, 
judgments  and  specialties  are  subject  to  the  clause  that  provides 
that  the  presumption  of  payment  shall  attach  thereto  after  twenty 
years,  (a)  In  Maine,  "every  judgment  and  decree"  are  pre- 
sumed to  be  paid  and  satisfied  at  the  expiration  of  twenty  years 
after  any  duty  or  obligation  accrued  by  virtue  of  such  judgment 
or  decree;  and  this  applies  to  judgments  in  other  States  and 
judgments  of  justices  of  the  peace  of  that  State;  and  although 
no  provision  exists  for  the  rebuttal  of  this  presumption,  it  is  not 
absolute,  and  it  may  be  rebutted  by  any  competent  proof.1  In 
New  Jersey,  the  language  of  21  James  I.  as  to  specialties  is 
adopted,  and  no  provision  is  made  as  to  judgments  except  a  pro- 
vision that  all  judgments  of  any  court  of  record  of  that  State 
may  be  revived  by  scire  facias  any  time  within  twenty  years  after 
the  date  of  judgment  and  not  after.  {U)     As  to  leases  under  seal, 

'Jackson  v.  Nason,  38  Me.  85;   Knight  v.  Macomber,   55   Me.  132;  Noble  v. 
Merrill,  4S  Me.  140. 

(a)  In  New  York,  §  376  of  the  Code  though    an    action    on   a   judgment   is 

of  Civil  Procedure  is  treated  as  a  stat-  barred,  and  its  lien  has  ceased,  a  mo- 

ute  of  limitations,  and  its  provision  that  tion    to   issue  execution  thereon  is  not 

a  final  judgment  or  decree  for  a  sum  barred  if  execution  has  been  regularlv 

of    money  "  is    presumed    to    be    paid  issued   once  every   three  years.      VVil- 

nd   satisfied   after    the    expiration    of  Hams  -'.  Mullis,  S7   N.   C.  159;   McCas- 

twenty  years  from  the  time  when  the  kill  v.  McKinnon,  121   N.  C.  192.     See 

party   recovering   it   was  first  entitled  Brown     v.     Hopkins,     101     Wis.    498; 

to  a  mandate  to  enforce  it,"  limits  the  Walsh  v.  Bosse,  16  Mo.  App.  231. 

time  as  absolutely  as   would  a  statute  For  the  purpose  of  reviewing  a  judg- 

providing  that  no  action  will  lie  thereon  ment    on    scire  facias,  a  writ  of   man- 

unless  brought  within  that  time.      But,  damus  to  enforce  the  judgment  is  now 

as  the  enlry  of  a  foreclosure  and  sale  treated  as  equivalent  to  the  right  to  is- 

would  not  authorize  the  mandate,  the  sue    an    execution     thereon.       United 

twentv    years'    period    does    not    com-  States  v.  Oswego,  28  Fed.  Rep.  55;  Mc- 

menre  to  run   until  a  deficiency  judg-  Aleer  v.  Clay  County,  42  id.  665:  Stew- 

ment  is  perfected.     Seaman  v.  Clarke,  art  v.  Justices,  47  id.  482;   Wonderly  v. 

6g  N.  Y.  Supp.  1002.  Lafayette  County,  74  id.  702;   Houston 

(/)   In  New  York  it  is  held  that,  as  an  v.  Emery,  76  Texas,  282;  State  v.  Ap- 

exccution    is   neither  an   action    nor  a  pleby,  25  S.  C.  xoo. 

special  pr  needing,  a  statute  may  prop-  The   rule   that  an   execution  cannot 

erly   authorize   it   to   be  issued  at  any  regularly  issue  on  a  judgment  that  has 

time  within    the   twenty  years'  limita-  lain  dormant  more  than  a  year  and  a 

tion  upon  judgmentsof  courts  of  record,  day,  is  a  common-law  rule,  and  is  not 

even  when  it  is  based  upon  a  justice's  administered   in  analogy  to  the  statute 

judgment  which  is  barred  in  six  years,  of   limitations,  since,  e.  g.%   it   is    not 

Warnei   v.  Barlle,  $(>  N.  Y.  Supp.  585.  affected  by  the  debtor's  absence  from 

In    North    Carolina    it    is    held    that,  the  State.     Yatter  7>.  Smilie,  72  Vt.  349. 


§  31.]  SPECIALTIES.  83 

indented  or  poll,  single  or  penal,  bills  for  the  payment  of  money 
only  and  awards  under  seal,  the  lapse  of  sixteen  years  after  an 
action  accrues  thereon  affords  a  bar. 

SEC.  31.  Statutory  Provisions  as  to.  —  In  Pennsylvania,  the 
third  section  of  Stat.  21  James  I.  is  adopted,  and  specialties  are 
not  within  the  statute;  and  such  also  is  the  case  in  Maryland. 
In  Mississippi,  Tennessee,  Kentucky,  Florida,  Virginia,  North 
Carolina,  South  Carolina  and  Georgia  specialties  are  within  the 
statute.  In  Alabama,  the  statute  provides  for  actions  upon  any 
contract  in  writing  under  seal,  and  they  are  barred  in  ten  years. 
The  Wisconsin  statute,  in  addition,  includes  judgments  of  courts 
of  any  of  the  Territories.  In  Delaware,  actions  founded  upon  a 
record  or  specialty  are  not  within  the  statute,  except  so  far  as 
special  cases  are  provided  for;  as  actions  upon  sheriff's  recog- 
nizances, guardians'  bonds,  official  obligations  of  certain  State 
and  county  officers,  specifically  named,  and  bonds  given  to  banks 
or  other  corporations  in  the  State  for  the  faithful  discharge  of  the 
duties  of  officers  or  employees  therein.  In  all  other  cases  spe- 
cialties are  not  within  the  statute.  In  Maine,  no  special  pro- 
vision is  made  for  specialties;  consequently  they  are  embraced 
under  the  general  section,  which  provides  that  all  personal  actions 
not  otherwise  provided  for  shall  be  barred  in  twenty  years.  In 
Vermont,  judgments  are  barred  in  eight  years,  as  also  are  all 
actions  of  covenant  other  than  covenants  of  warranty  and  seisin 
contained  in  deeds,  which  are  barred  in  eight  years  after  the 
cause  of  action  accrued,  and  actions  of  covenant  for  breaches  of 
covenants  of  seisin  and  warranty  in  eight  years  after  a  final 
decision  against  the  title  of  the  covenantor  in  such  deed ;  other- 
wise specialties  are  not  within  the  statute.  In  Massachusetts,  all 
specialties  are  embraced  under  the  general  provision  that  personal 
actions  not  otherwise  limited  shall  be  barred  in  twenty  years.  In 
Ohio,  specialties,  like  all  contracts  in  writing,  are  barred  in  twenty 
years;  and  in  this  State  a  recognizance  for  the  stay  of  an  execu- 
tion x  and  a  transcript  of  a  judgment  of  another  State2  are 
regarded  as  specialties,  but  a  domestic  judgment  is  not.3  An 
indorsement  of  a  note  is  a  contract  in  writing  under  this  statute,4 

1  Bobo  v.  Norton,  10  Ohio  St.  514. 
3  Bissell  v.  Jaudon,  16  Ohio  St.  498. 

3  Tyler  v.  Winslow,  15  Ohio  St.  364. 

4  Haines  v.  Tharp,  15  Ohio,  130 


84  STATUTES    OF    LIMITATION.  [CHAP.    III. 

and  so  is  a  subscription  to  the  stock  of  a  corporation.1  In  Indi- 
ana, provision  is  made  as  to  contracts  in  writing  and  those  not  in 
writing,  and  no  distinction  is  made.  In  Illinois,  actions  for 
arrearages  of  rent  accruing  under  a  lease  under  seal,  or  upon  any 
single  or  penal  bill,  promissory  note,  or  writing  obligatory,  for 
the  direct  payment  of  money,  or  the  delivery  of  property,  or  the 
performance  of  covenants,  or  upon  an  award  under  seal,  are 
barred  in  sixteen  years;  judgments  are  barred  in  twenty  years. 
In  Michigan,  all  specialties,  although  not  named,  are  within  the 
general  provision  of  the  statute,  and  are  barred  in  twenty  years; 
and  such  also  is  the  case  in  Wisconsin.  In  Missouri,  all  actions 
of  debt  upon  contracts  sealed  and  unsealed  are  put  upon  the 
same  footing,  and  are  barred  in  ten  years,  and  by  the  statute  all 
judgments  are  presumed  to  be  paid  within  twenty  years  after 
their  rendition;  and  the  same  provision  exists  as  to  all  sealed 
instruments,  which  embraces  all  for  the  breach  of  which  an  action 
of  debt  will  not  lie.  In  Arkansas,  all  specialties  come  under  the 
general  provision,  and  are  barred  in  five  years;  and  judgments 
are  presumed  to  be  paid  in  ten  years,  and  the  same  provision  is 
applied  to  any  instrument  for  the  payment  of  money  or  delivery 
of  property.  In  Iowa,  no  distinction  is  made  between  sealed  and 
unsealed  instruments,  and  both,  as  well  as  judgments  of  courts 
not  of  record,  are  barred  in  ten  years,  and  judgments  of  courts 
of  record  in  twenty  years.  In  California,  judgments  of  courts  of 
record  are  barred  in  five  years,  and  all  obligations  in  writing  in 
three  years,  but  the  statute  does  not  begin  to  run  until  it  is 
entered  and  recorded.2  In  Oregon,  actions  upon  sealed  instru- 
ments are  barred  in  ten  years,  upon  a  liability  created  by  statute, 
except  a  penalty  of  forfeiture,  in  six  years,  and  judgments  and 
decrees  of  courts  of  record  in  ten  years;  so  also  in  Minnesota. 
In  Kansas,  an  action  upon  a  "  specialty,"  as  well  as  any  agree- 
ment, contract,  or  promise  in  writing,  is  barred  in  three  years. 
In  Nevada,  no  distinction  is  made  between  sealed  and  unsealed 
written  instruments,  and  either  are  barred  in  four  years,  judg- 
ments of  courts  of  record  in  five  years,  and  statutory  liabilities, 
except  for  penalties  or  forfeitures,  in  three  years.  In  Nebraska, 
an   action    upon   a   specialty  is  barred  in  four  years,  except  such 

1  Warner  v.  Callender,  20  Ohio  St.  190;  Gibson  v.  Columbia,  etc.,  Bridge  Co., 
18  id.  396, 
5  Crim  v.  Kessinp,  89  Cal.  478. 


§  32.]  SPECIALTIES.  8$ 

bonds  or  obligations  as  arc  required  by  statute,  which  are  barred 
in  ten  years,  and  judgments  in  four  years  This  synopsis  shows 
great  lack  of  uniformity,  the  doubt  and  confusion  that  may  arise 
under  some  of  the  statues,  and  the  necessity  of  bringing  together 
the  gist  of  the  decisions  as  to  what  classes  of  claims  are  to  be 
regarded  as  specialties. 

SEC.  32.  Rent.  Actions  for.  —  Actions  for  rent  accruing  under  a 
lease  under  seal  are  not  within  the  statute,1  and  the  words  "actions 
of  debt  for  arrearages  of  rent  "  contained  in  the  statute  of  James, 
and  those  which  adopt  its  language  in  this  respect,  are  held  not  to 
include  actions  for  rent'  accruing  under  a  specialty.2  (a)  But  for 
rents  accruing  under  a  lease  under  seal  which  is  so  defectively 
executed  as  not  to  be  operative  as  a  lease,3  or  under  a  parol 
demise,4  the  action  is  within  the  statute,  and  comes  within  the 
class  of  rents  embraced  within  and  intended  by  the  words  "  actions 
of  debt  for  arrearages  or  rent."5  But  in  many  States  the  lan- 
guage of  the  statute  embraces  actions  of  debt  for  arraers  of  rent, 
whether  they  accrue  under  a  lease  by  specialty  or  parol.     Thus, 

1  Pease  v.  Howard,  supra;  Buffum   v.  Dearie,  4  Gray  (Mass.)  385 

2  In  Freeman  v.  Stacy,  Hutt.  109,  where  in  an  action  of  debt  upon  a  lease  by 
indenture  for  twenty  years  rendering  rent,  it  appeared  that  the  arrearages  sued 
for  accrued  more  than  six  years  before  the  action  was  brought,  it  was  held  that 
the  action,  being  for  rent  which  accrued  under  a  lease  by  indenture,  was  not 
within  the  statute.  See  also  Collins  v.  Goodal,  2  Vern.  235;  Hodsden  v.  Har- 
idge,  2  Saund.  66;  Stackhouse  v.  Barnston,  10  Ves.  453;  Kane  v.  Bloodgood,  7 
Johns.  Ch.  (N.  Y.)  90;  Davis  v.  Shoemaker,  1  Rawle  (Penn.)  135;  McQuesney 
v.  Hiester,  33  Penn.  St.  435;  Vechte  v.  Brownell,  8  Page  (N.  Y.)  212. 

3  Lansdell  v.  Gower,  17  Q.  B.  589. 

*  Kane  v.  Bloodgood,  7  Johns.  Ch.  (N.  Y.)  90;  Elder  v.  Henry,  2  Sneed 
(Tenn.)  81. 

6  Kane  v.  Bloodgood,  supra;  Elder  v.  Henry,  supra. 

(a)    Respecting      the      meaning      of  its   duty   in    distributing   the  purchase 

"  rent  "  and  "  of  annuities  or  periodi-  money;  and,  when  once  the  order  for 

cal  sums  of  money  charged  upon  land  "  sale  is  made,  the  statute  of  limitations 

in  3  &  4  Wm.  IV.  c.  27,  §  I,  see  Payne  ceases  to  apply.     In  re  Belton's  Estate. 

v.    Esdaile,    13    A.    C.    613;    Jones    v.  [1894]    1    I.    R.   537,  540.     See  35  Am. 

Withers,  74  L.  T.  572.     In  the  case  of  L.    Reg.    (N.  S.)    557;    In  re   England, 

an  annuity  charged  upon  land,  if  the  [1895]  2  Ch.  820.      In    Rhode    Island  a 

court  orders   the   land   sold,   its   order  charge   on    realty   created    by  will   for 

amounts   to   a  conversion  of   the  land  payment  of  the  testator'sdebts  prevents 

into  money,  and   an  order  for  the  dis-  the  statute  running  on  debts  not  barred 

tribution    of   the   money  among   those  in     his     lifetime.       Woonsocket    Sav. 

whose  claims  then  bind  the  land.     The  Inst.  v.  Ballou,  16  R.  I.  351. 

annuity,  if   a    valid   charge    when    ihe  The  receipt  of  interest  or  rents  is  not 

order  for  sale  is  made,  continues  to  be  an  acknowledgment.    Mara  v.  Browne, 

a  valid  charge  till  the  court  had  done  [1895]  2  Ch.  69,  95. 


86  STATUTES   OF   LIMITATION.  [CHAP.   III. 

in  Maine,  the  language  of  the  stuatute  is,  "  actions  for  arrears  of 
rent :"  l  the  same  is  also  the  case  in  Vermont 2  (and  in  both  States 
the  action  is  barred  in  six  years).  In  Massachusetts,3  except 
upon  leases  under  seal.  In  Michigan,4  same  as  in  Maine  and 
Wisconsin.5  In  New  Hampshire,  such  actions  are  barred  in 
twenty  years,  under  §  4.15  In  Connecticut,  this  class  of  actions 
accruing  under  a  lease  under  seal  are  barred  in  seventeen  years.7 
In  New  Jersey,  such  actions  are  barred  in  sixteen  years.8  In 
Delaware,  this  class  of  actions  is  not  within  the  statute.9  In 
South  Carolina,  such  actions  are  barred  in  six  years.10  In  Ala- 
bama, an  action  for  arrearages  of  rent  due  on  a  lease  under  seal  u 
is  barred  in  ten  years.  In  Ohio,  actions  upon  "  specialties  "  are 
limited  to  fifteen  years,  and  actions  upon  other  contracts  to  six 
years.12  In  Illinois,  actions  upon  leases  are  barred  in  ten  years.13 
In  Missouri,  Iowa  and  Oregon,  all  actions  founded  upon  any 
writing,  under  seal,  are  barred  in  ten  years,14  and  in  Indiana  in 
twenty  years.  In  Kansas,  "an  action  upon  any  agreement,  con- 
tract, or  promise  in  writing  "  is  barred  in  five  years  after  the 
cause  of  action  thereon  accrues.15  In  Nevada,  specialties  are  not 
enumerated,  but  this  class  of  actions  comes  under  the  general 
provisions  of  sees.  15,  16,  and  is  barred  in  five  years;16  and  in 
Nebraska,  actions  upon  a  specialty  are  barred  in  four  years.17 
Thus  in  several  of  the  States  actions  for  the  recovery  of  rent  or 

'  Maine  Rev.  Stats.  (1883),  ch.  82,  cl.  3. 

J  Vermont,  Appendix. 

3  Massachusetts,  Appendix. 

*  Michigan,  Appendix. 

*  Wisconsin,  Appendix. 

*  New  Hampshire,  Appendix. 

I  Connecticut,  Appendix. 

*  New  Jersey,  2  Gen.  Stats,  p.  1975,  §  13. 

*  Delaware,  Appendix. 

10  South  Carolina,  Appendix. 

II  Alabama,  Appendix. 
"  Ohio,  Appendix. 

11  Illinois,  Appendix. 

14  Missouri,  Oregon,  Iowa,  Appendix.  See  also  California,  Appendix,  where 
all  written  contracts  are  put  on  the  same  footing  and  are  barred  in  four  years. 
In  Minnesota,  all  actions  on  contracts,  express  or  implied,  are  barred  in  six 
years. 

"  Kansas  (1890),  §  4262. 

11  Now  Nevada  Compiled   Laws  (iqoo),  §^  3717,  3718. 

11  Nebraska,  Appendix. 


§§  33,  34-]  specialties.  87 

arrearages  of  rent  accruing  upon  a  lease  under  seal  are  not  within 
the  statute,  and  are  still  subject  to  the  common-law  presumption 
from  the  lapse  of  twenty  years,  or  come  within  the  provisions  of 
general  clauses  applying  to  all  causes  of  action  not  specially  pro- 
vided for. 

Sec.  33.  Avowry  for  Rent. — An  avowry  for  rent  created  by 
deed,  as  for  a  rent-charge,  has  been  held  to  be  a  specialty; l  so, 
an  action  for  rent  originally  created  by  act  of  Parliament ; 2  but  an 
action  for  rent  reserved  on  a  parol  lease,  or  lease  not  under  seal, 
is  within  the  statute.3  An  action  for  an  escape  is  not  within  the 
statute,4  nor  debt  for  a  copyhold  fine,5  nor  for  not  setting  out 
tithes,6  nor  against  a  sheriff  for  money  which  he  levied  on  a  fieri 
facias,'1  nor  upon  an  award  under  the  seal  of  the  arbitrators; 8  nor 
is  a  warrant  of  attorney  within  the  statute.9 

SEC.  34.  Foreign  Judgments.  —  Foreign  judgments,  as  we 
have  seen,  are  regarded  as  within  the  statute;  but  this  is  not  the 
case  when  the  judgment  was  predicated  upon  a  specialty,  because 

•Co.  Litt.  115a;  Foster's  Case,  8  Coke,  64;  Faulkner  v.  Bellingham,  1  W. 
Jones,  237;  Bacon's  Abr.  227,  D,  1. 

5  Faulkner  v.  Bellingham,  Cro.  Car.  81. 

3  Freeman  v.  Stacy,  Hutt.  109. 

4  Jones  v.  Pope,  1  Saund.  37. 

5  For  1  he  reason  that  it  is  not  founded  on  a  contract  of  lending.  Hodgdon  v. 
Harris,  1  Lev.  373. 

6  Talony  v.  Jackson,  Cro.  Car.  513. 
1  Cockram  v.  Welby,  2  Mod.  212. 

8  Hodsden  v.  Harridge,  2  Saund.  64;  Rank  v.  Hill,  2  W.  &  S.  (Penn.)  56; 
Smith  v.  Lockwood,  7  Wend.  (N.  Y.)  241.  In  Green  &  Coates  S.  P.  Ry.  Co.  v. 
Moore,  64  Penn.  St.  79,  it  was  held  that  an  award,  although  the  submission  is 
by  parol,  is  not  within  the  statute,  but  that  when  property  is  purchased  at  a 
price  to  be  assessed  by  appraisers,  the  valuation  is  not  an  award,  and  that  the 
statute  bars  an  action  thereon  after  six  years,  as  it  is  a  contract  without  specialty ; 
but  where  a  submission  is  by  parol,  and  the  award  by  parol,  assumpsit  lies 
thereon,  and  the  award  is  within  the  statute.  In  Hodsden  v.  Harridge,  the 
award  was  required  to  be,  and  in  fact  was,  under  seal.  When  the  submission 
is  under  seal  the  award,  being  a  specialty,  although  not  under  seal,  cannot  be 
sued  for  in  assumpsit,  and  is  not  within  the  statute  as  to  simple  contracts. 
Holmes  v.  Smith.  49  Me.  242;  McCargo  v.  Crutcher,  23  Ala.  575;  Horton  v. 
Ronalds,  2  Port.  (Ala.)  79;  Tullis  v.  Sewell,  3  Ohio,  510. 

*  Morris  v.  Hannick,  21  Pittsb.  L.  J.  (Penn.)  199.  But  while  it  was  at  one  time 
thought  that  an  action  by  an  attorney  for  his  fees  is  not  within  the  statute, 
because  they  depend  upon  a  record,  I  Mod.  246,  yet,  as  we  have  seen,  such  is 
not  the  rule. 


88  STATUTES   OF    LIMITATION.  [CHAP.   III. 

in  such  cases  the  court  looks  beyond  the  judgment  to  the  claim 
on  which  it  is  based;  and  if  that  would  not  be  barred,  the  judg- 
ment is  not.1^)  Thus,  where  a  judgment  obtained  in  New 
Brunswick  was  sued  in  Maine,  it  was  there  held  that,  as  the 
original  claim  was  a  witnessed  promissory  note,  which  is  excepted 
from  the  operation  of  the  statute  of  that  State  applicable  to 
simple  contracts,  the  statute  did  not  apply.2  In  Ohio  and  New 
Hampshire  it  has  been  held  that  even  a  judgment  of  a  justice  of 
the  peace  rendered  in  another  State  is  a  specialty,  and  not  within 
the  statute.3  But  in  most  of  the  States,  only  judgments  of  courts 
of  record  are  excepted  from  the  operation  of  the  statute ;  and 
probably  in  all  of  them  except  the  two  referred  to,  the  judgment 
of  a  justice  of  the  peace  of  another  State,  or  even  of  that  State, 
will  not  be  regarded  as  a  specialty,4  unless  by  statute  justices' 
courts  are  made  courts  of  record.5 

SEC.  35.  Mixed  Claims,  Instances  of.  —  A  party  having  a  mixed 
claim,  that  is,  both  a  simple  contract  and  a  specialty,  may  have 
his  choice  of  remedies  thereon.  Especially  is  this  the  case  where 
a  note  is  secured  by  a  mortgage  of  lands,  or  even  of  personalty 
where  the  mortgage  is  under  seal.      In  such  cases  the  note,  not 

1  Richards  v.  Bickley,  13  S.  &  R.  (Penn  )  3Q5. 

'Jordan  v.  Robinson,  15  Me.  167. 

3Stockwell  v.  Coleman,  supra;  Mahurin  v.  Bickford,  8  N.  H.  54..  See  also 
Robinson  v.  Prescott,  4  N.  H.  45,  where  such  a  judgment  is  held  not  to  be  con- 
clusive, but  as  standing  upon  the  same  footing  as  any  foreign  judgment. 

*  Mowry  v.  Cheesman,  6  Gray  (Mass.)  515. 

s  In  New  York,  while  the  court  held  that  a  justice's  judgment  is  not  within 
the  statute,  Pease  v.  Howard,  14  Johns.  (N.  Y.)  479,  judgments  of  the  Marine 
Courts  were  held  to  be  within  it,  Lester  v.  Redmond,  6  Hill  (N.  Y.)  590.  But 
now,  in  New  York,  justices'  judgments  are  barred  in  six  years,  Nicholls  v. 
Atwood,  16  How.  Pr.  (N.  Y.)  475;  and  on  judgments  of  the  Marine  Court  in 
twenty  years,  Conger  v.  Vandewater,  1  Abb.  Pr.  (N.  Y.),  N.  S.,  126.  In  Missis- 
sippi, the  statute  is  held  to  apply  to  a  decree  of  the  Probate  Court,  Dilworth  v. 
Carter,  32  Miss.  206;  but  otherwise  in  Pennsylvania.  Burd  v.  M'Gregor,  2 
Grant  (Penn.)  353.  In  Maine,  a  judgment  of  the  county  commissioners  is  held 
to  be  within  the  statute,  Woodman  v.  Somerset,  37  Me.  29;  and  in  Massachu- 
setts, a  judgment  of  the  Police  Court  of  Lowell  was  held  not  within  the  statute. 
Bannegan  v.  Murphy,  13  Met.  (Mass.)  251.  Indeed,  in  all  cases  the  question 
whether  a  judgment  is  within  the  statute  or  not  depends  entirely  upon  the  cir- 
cumstance whether  it  is  the  judgment  of  a  court  of  record  as  declared  by  the 
law  creating  it. 

(a)  See  Van  Santvoord  v.  Roethler,  35  Oregon.  250. 


§  35-] 


SPECIALTIES. 


89 


being  under  seal,  is  a  simple  contract,  although  it  is  recited  in  the 
mortgage,  and  the  statute  runs  against  it  as  against  other  simple 
contracts;  but  the  mortgage  is  a  specialty,  and  may  be  enforced 
at  any  time  within  twenty  years  (if  that  is  the  statutory  period 
for  barring  specialty  debts  in  the  State  where  action  is  brought), 
although  the  effect  is  to  enforce  the  payment  of  a  simple-contract 
debt.1  (a)  A  distinction  exists  between  an  action  growing  directly 
out  of,  and  predicated  and  dependent  upon,  a  specialty  and  one 
that  is  only  incidental  thereto,  and  can  be  maintained  without 
resort  to  the  specialty.  Thus,  an  action  of  assumpsit  will  not  lie 
upon  a  specialty,2  as  upon  an  insurance  policy  under  seal,3  or  a 
bond,*  or  for  work  done  or  materials  furnished  under  an  instru- 
ment under  seal.5     But  this  rule  only  exists  when  the  right  of 

1  Pratt  v.  Huggins,  29  Barb.  (N.  Y.)  277. 

s  Hinckley  v.  Fowler,  15  Me.  285;  Fletcher  v.  Piatt,  7  Blackf.  (Ind.)  522. 

3  Marine  Ins.  Co.  v.  Young,  1  Cranch  (U.  S.)  332;  Stroeble  v.  Large,  3  McCord 
(S.  C.)  114. 

4  Andrews  v.   Montgomery,    19  Johns.   (N.  Y.)  162;  Brown  v.  Houdlette,  10 
Me.  399. 

1  Porter  v.  Androscoggin  R.  R.  Co.,  37  Me.  349. 


(a)  The  period  of  twenty  years,  first 
established  as  a  bar  to  actions  of  eject- 
ment, was  extended  by  the  English 
judges  to  actions  on  bonds,  and  ulti- 
mately to  mortgages,  so  that,  if  a  mort- 
gagor remained  in  possession  for 
twenty  years,  and  did  not  give  any 
acknowledgment,  the  mortgage  was 
presumed  to  be  satisfied;  and  the  stat- 
ute of  3  &  4  Wm.  IV.  c.  27,  laid  down 
the  same  limitation  for  the  recovery  of 
a  mortgage  debt.  Section  8  of  the 
Real  Property  Limitation  Act  of  1874 
cut  down  the  period  of  twenty  years  to 
twelve  years  in  actions  to  recover 
money  charged  on  land;  and  this  latter 
limitation  is  held  to  apply  to  the  per- 
sonal remedy  on  the  covenant  in  a 
mortgage  deed,  as  well  as  to  the  remedy 
against  the  land,  even  when  the  ac- 
tion is  brought  against  a  surety  on  a 
mortgage  covenant.  Sutton  v.  Sutton, 
22  Ch.  D,  511;  In  re  Frisby,  43  id.  106. 
See  In  re  Turner's  Estate.  43  W.  R. 
153;  Kibble  v.  Fairthorne,  [1895]  1  Ch. 
219.  This  does  not  cover  a  simple 
contract  debt  even  when  money  is 
charged  on  land,  but  as  to  this  the 
limitation  of  six  years,  prescribed  by 
the  statute  of  James  in  1623,  still  ap- 
plies.    Barnes  v.  Glenton,  [1899]  1  Q. 


B.  885.  It  does,  however,  under  §  8  of 
the  Act  of  1874,  and  notwithstanding 
the  Act  27  &  28  Vict.  c.  112,  apply  to 
judgments,  which  are  now  barred  after 
twelve  years  when  there  is  no  part  pay- 
ment or  acknowledgment  in  writing. 
Jay  v.  Johnstone,  [1893]  1  Q.  B.  189; 
Hebblethwaite  v.  Peever,  [1892]  1  Q. 
B.  124. 

As  to  the  defense  of  the  statute  of 
limitations  in  ejectment  and  like  ac- 
tions, see  Stocker  v.  Green  (94  Mo.  280), 
4  Am.  St.  Rep.  382,  and  n.  And  as  to 
the  effect  of  a  judgment  in  ejectment 
in  suspending  such  statute,  see  Snell  v. 
Harrison  (131  Mo.  495),  52  id.  642,  and  n. 

Where  one  evidence  of  indebtedness 
replaces  another,  there  is  no  evidence 
of  payment  until  the  promise  to  pay  is 
in  fact  redeemed.  If  promissory  notes 
are,  after  maturity,  surrendered  to  their 
maker  who  then  secures  the  debt  bv 
mortgage,  but  it  is  not  clear  that  the 
surrender  discharged  the  debt,  the 
mortgage  is  evidence  of  an  extension 
by  changing  the  proof  of  the  original 
debt  to  an  instrument  under  seal,  and 
the  case  is  thereafter  governed  by  that 
part  of  the  limitation  statute  which  re- 
lates to  sealed  instruments.  Hance  v. 
Holiman  (Ark.),  60  S.  W.  730. 


C)0  STATUTES   OF    LIMITATION.  [ClIAF.   III. 

action  rests  upon  the  specialty,  or  derives  its  vital  force  therefrom. 
If  the  specialty  contract  has  been  rescinded,  waived,  or  departed 
from  by  an  agreement  not  under  seal,  so  that  a  promise  inde- 
pendent of  that  expressed  in  the  specialty  can  be  implied,  then 
the  debt  or  cause  of  action  ceases  to  be  a  specialty  debt,1  and  an 
action  can  be  supported  independent  of  the  sealed  contract.2 
This  exception  arises  in  numerous  instances.  Thus,  where  a 
partnership  is  formed  by  indenture  or  an  instrument  under  seal, 
prima  facie,  all  actions,  etc.,  for  an  accounting,  between  the  par- 
ties, must  be  predicated  directly  upon  the  articles,  but  if  one  of 
the  partners  dies,  and  the  other  promises  by  parol  to  account  to 
his  executor,  an  action  of  assumpsit  may  be  brought  upon  such 
promise;  and  the  action  not  being  founded  upon  the  indenture, 
although  an  incident  thereto,  the  statute  applies  to  such  action, 
although  a  suit  upon  the  specialty  for  an  accounting  would  not 
be  barred.3  So  where  one  co-obliger  under  a  bond  has  been 
compelled  to  pay  the  whole  amount  secured  thereby,  he  may 
bring  assumpsit  against  the  other  for  contribution,  because, 
although  the  original  indebtedness  arose  out  of  the  bond,  which 
is  a  specialty,  yet  the  claim  upon  which  the  action  is  predicated 
rests  not  upon  the  bond,  but  upon  the  promise  which  the  law 
implies,  on  the  part  of  the  co-obligers,  to  share  equally  the 
pecuniary  consequences  of  their  venture; 4  and  this  distinction, 
to  wit,  between  an  action  founded  upon  and  created  by  a 
specialty,  and  one  which,  although  an  incident  of  a  specialty,  yet 
rests  upon  an  express  or  implied  promise,  is  necessary  to  be 
observed,  as  in  the  former  instance  the  statute  does  not  apply, 
while  in  the  latter  it  does.  This  matter  may  be  illustrated  in  the 
case  of  a  legacy,  while  a  plea  of  the  statute  of  limitations,  to  an 
ordinary  action  for  its  recovery,  cannot  be  interposed,  unless  the 

1  Aiken  v.  Bloodgood,  12  Ala.  221;  Little  v.  Morgan,  31  N.  H.  499;  Gilman  v. 
School  Dist.,  15  id.  215;  Pierce  v.  Lacy.  23  Miss.  193;  Brown  v.  Gauss,  10  Mo. 
265. 

'Charles  v.  Scott,  1  S.  &  R.  (Penn.)  294;  Gilmore  v.  Pope,  5  Mass.  497; 
Dutchess  Cotton  Co.  v.  Davis,  14  Johns   (N.  Y.)  238. 

3Codman  v.  Rogers,  10  Pick.  (Mass.)  112.  In  Gray  v.  Green,  125  N.  Y.  203, 
it  was  held  that  the  plaintiff,  as  liquidating  partner,  was  the  authorized  agent 
of  the  partnership,  and  as  such,  it  was  his  duty  to  collect  the  firm  assets;  that 
the  claim  against  the  defendant  was  an  asset,  which  it  was  the  plaintiff's  duty 
to  collect;  and  that  the  cause  of  action  accrued  immediately  upon  the  dissolu- 
tion.    See  Hammond  v.  Hammond.  20  Ga.  556. 

*  Pcnniman  v.  Vinton,  4  Mass.  276. 


§  35-]  SPECIALTIES.  91 

statute  expressly  so  provides;  1  and  this  is  also  the  rule  in  courts 
of  equity;2  but  if  there  exists  a  liability  upon  the  executor 
because  he  has  personal  assets  in  his  hands,3  so  that  the  law  can, 
or  will,  raise  an  implied  promise  on  the  executor's  part  to  pay  it, 
or  if  he  has  expressly  promised  to  pay  it  over,  then  assumpsit  lies 
therefor ; 4  and  to  this  express  or  implied  promise  the  statute  would 
apply;  but  it  only  bars  the  action  upon  the  promise,  and  it  does 
not  defeat  the  legatee's  remedy  for  the  legacy  by  the  ordinary 
remedies  therefor.  In  such  cases,  it  has,  in  some  instances,  been 
held  that  the  statute  applies  after  the  expiration  of  the  period 
fixed  in  the  will  for  payment,  and  demand  has  been  made  for 
payment ;5  (a)  and  such  also  is  the  case  when  the  trust  is  ended 
and  there  has  been  a  settlement  between  the  executor  and  lega- 
tee.8 So,  also,  it  has  been  held  that  assumpsit  will  lie  to  recover 
a  balance  struck,  although  the  account  going  to  make  up  such 
balance  embraces  specialties;7  or  upon  a  promise  to  pay  the 
assignee  of  a  specialty;8  and  generally,  it  may  be  said,  assumpsit 
lies  whenever  there  is  an  express  promise,  or  the  law  will  raise  an 
implied  promise  as  an  incident  of  the  speciatly ; 9  in  such  cases 
the  statute  runs  against  the  assumpsit,  but  not  against  the  specialty 
obligation,  and  remedies.  There  being  no  statutory  provision 
as  to  legacies  in  this  country,  the   law  upon   this  subject  here 

1  Perkins  v.  Cartmell,  4  Harr.  (Del.)  270;  Thompson  v.  M'Gaw,  2  Watts 
(Perm.)  161;  Doebler  v.  Snavely,  5  id.  225;  Durdon  v.  Gaskill,  2  Yeates  (Penn.) 
268.  In  Louisiana,  such  actions  are  baired  in  ten  years.  Nolasco  v.  Lurty,  13 
La.  Ann.  100. 

8  Thompson  v.  M'Gaw,  supra. 

3  Goodwin  v.  Chaffee,  4  Conn.  166.  In  this  case,  as  there  were  no  asseis  in 
the  hands  of  the  executor  without  resorting  to  the  really,  the  court  held  that 
assumpsit  would  not  lie,  as  the  law  raises  no  implied  promise.  See  also  Knapp 
v.  Hanford,  6  id.  170. 

4  Woodruff  v.  Woodruff,  3  N.  J.  L.  552;  Cowell  v.  Oxford,  6  id.  432;  Clark  v. 
Herring,  5  Binn.  (Penn.)  33;  Goodwin  v.  Chaffee,  supra;  Farwell  v.  Jacobs,  4 
Mass.  635;  Warren  v.  Rogers,  2  Root  (Conn.)  156. 

6  Young  v.  Cook,  30  Miss.  320. 

*  Young  v.  Cook,  supra;  Thompson  v.  M'Gaw,  supra. 

1  Gilson  v.  Stewart,  7  Watts  (Penn,)  100;  Miller  v.  Watson,  7  Cow.  (N.  Y.)  39. 

8Compton  v.  Jones,  4  Cow.  (N.  Y.)  13. 

9  Baird  v.  Blaigrove,  1  Wash  (Va.)  170;  Arnold  v.  Hickman,  6  Munf.  (Va.) 
15;  Hills  v.  Elliott,  12  Mass.  26;  Jones  v.  Lowe,  4  Humph.  (Tenn.)  333;  Wil- 
loughby  v.  Spear,  4  Bibb  (Ky.)  379. 

(a)  See  Hornsey  Local  Board  v.  Monarch  Inv.  Building  Society,  24  Q.  B.  D. 
I,  10. 


92  STATUTES   OF    LIMITATION.  [CHAP.   III. 

stands  as  it  did  in  England  prior  to  the  adoption  of  the  statute 
3  and  4  Wm.  IV.  ;  there  is  no  limitation  against  a  trust,  as  there 
was  none  under  Stat.  21  James  I.,  c.  16; '  and  executors  and 
administrators  being  express  trustees,  they  cannot  set  up  the 
statute  against  the  claims  of  legatees  or  distributees.2  In  an 
English  case,3  Lord  Nottingham  held  that  a  legacy  was  not 
barred  by  the  statute,  "  nor  ever  had  been  so."4  This  matter 
will  be  more  fully  treated  under  the  head  of  Executors  and 
Administrators. 

Sec.  36.  Liability  created  by  Statute.  —  In  all  cases  where 
liability  is  created  by  the  positive  requisitions  of  a  statute,  and 
not  by  the  act  of  the  parties  themselves,  the  liability  is  in  the 
nature  of  a  specialty,  and  is  not  within  the  Statute  of  21  James, 
nor  within  the  statues  adopted  in  the  several  States  applicable  to 
simple  contracts,  unless  expressly  made  so.  (a) 

SEC.  37.  Special  Statutory  Provisions  relating  to  Specialties.  — 
In  Maine,5  contracts  under  seal  are  excepted  from  the  operation 
of  the  statute;  but  judgments  and  decrees  of  any  court  of  record 
of  the  United  States,  or  of  a  State,  or  of  a  municipal  court  or  of 
a  justice  of  the  peace  of  that  State,  are  presumed  to  be  paid  and 

1  Hollis's  Case,  2  Ventr.  345;  Brittlebank  v.  Goodwin,  L.  R.  5  Eq.  545;  Har. 
greaves  v.  Michell,  6  Madd.  326;  Yingling  v.  Hesson,  16  Md.  112;  Barker  v. 
Martin,  5  Sim.  380;  Obee  v.  Bishop,  1  De  G.  F.  &  J.  137;  Wedderburn  v.  Wed- 
derburn,  2  Keen,  722. 

8  Bailey  v.  Shannonhouse.  1  Dev.  Eq.  (N.  C.)4i6;  Lafferty  v.  Turley,  3  Sneed 
(Tenn.)  157;  Amos  v.  Campbell,  9  Fla.  187;  Picot  v.  Eates,  39  Mo.  292;  Smith 
v.  Smith,  7  Md.  55;  Knight  v.  Brawner,  14  id.  1. 

3  Anonymous,  2  Freem.  22,  pi.  20. 

4  Parker  v.  Ash,  1  Vern.  257;  Sparhawk  v.  Buel,  9  Vt.  41;  Wood  v.  Riker,  1 
Paige  (N.  Y.)  616;  Cartwright  v.  Cartwright,  4  Hayw.  (N.  C.)  134;  Doebler  v. 
Snavely,  5  Watts  (Penn.)  225;  Norris's  Appeal,  71  Penn.  St.  120;  Irby  v. 
M'Crea,  4  Desau.  (S.  C.)  422;  McCartee  v.  Camel,  1  Barb.  Ch.  (N.  Y.)  455; 
Perkins  v.  Cartmell,  4  Harr.  (Del.)  270;  Souzer  v.  De  Meyer,  2  Paige  (N.  Y.) 
574;  Smith  v.  Remington,  42  Barb.  (N.  Y.)  75.  In  Massachusetts,  the  bar  of 
the  statute  is  expressly  excluded.  See  Brooks  v.  Lynde,  7  Allen  (Mass.)  64; 
Kent  v.  Dunham,  106  Mass.  586.  In  Sheldon  v.  Sheldon,  133  N.  Y.  1,  it  was 
held,  that  a  legacy  given  to  a  creditor  of  the  testator  of  more  than  the  amount  of 
the  debt,  does  not  operate  as  a  payment  of  the  debt,  in  the  absence  of  any 
words  in  the  will  from  which  an  intent  to  extinguish  the  debt  can  be  inferred. 

5  Maine  Rev.  Stats.  (1883),  ch.  81,  g§  82,  90. 

{a)  See  In  re  Cornwall  Minerals  Ry.  Co.,  [1897]  2  Ch  74;  Robertson  v.  Blaine 
County,  90  Fed.  Rep.  63. 


§  37-]  specialties.  93 

satisfied  at  the  expiration  of  twenty  years  after  any  duty  or  obli- 
gation accrued  by  virtue  of  such  judgment  or  decree,  and  no 
provision  is  made  for  any  renewal  of  the  same  by  any  acknowledg- 
ment or  payment.  In  Vermont,1  actions  of  debt  or  scire  facias 
on  judgments  must  be  brought  within  eight  years  after  the  ren- 
dition of  the  judgment,  and  also  all  actions  of  debt  on  specialties ; 2 
actions  of  covenant,  except  covenants  of  warranty  and  seisin,  are 
barred  within  eight  years  next  after  the  cause  of  action  accrued ; 
all  actions  of  covenant  on  any  covenant  of  warranty  in  a  deed 
within  eight  years  after  a  final  decision  against  the  title  of  the 
covenantor;  and  on  covenants  of  seisin,  within  fifteen  years  from 
the  time  when  the  cause  of  action  accrued.  In  New  Hampshire, 
actions  of  debt  founded  upon  any  judgment  or  recognizance,  or 
upon  any  contract  under  seal,  may  be  brought  within  twenty 
years;  and  mortgage  notes  are  not  barred  until  the  mortgage  is;3 
and  in  Massachusetts4  actions  upon  this  class  of  claims  are  barred 
in  twenty  years.  So,  also,  in  Rhode  Island.5  In  Ohio,6  all 
actions  upon  specialties  are  barred  in  fifteen  years.  In  Michigan,7 
specialties  come  under  the  general  provisions  of  the  statute,  and 
are  barred  in  twenty  years.  So,  also,  in  Wisconsin.8  In  Ore- 
gon,9 all  actions  upon  specialties,  including  foreign  judgments, 
are  barred  in  ten  years.  In  California,10  actions  upon  judgments 
must  be  brought  within  five  years,  and  actions  upon  any  contract 
or  obligation  in  writing  within  four  years ;  and  by  a  general  clause, 
all  actions  for  relief  not  otherwise  provided  for  are  barred  in  four 
years,  and  this  brings  all  specialties  under  the  same  head.  In 
Minnesota,11  contracts  or  other  obligations  are  barred  in  six  years, 
including  actions  upon  any  liability  created  by  statute,  except 
penalties  and  forfeitures  where  the  penalty  is  given  to  the  party 
aggrieved,  which  are  barred  in  three  years,  and  actions  upon  a 
forfeiture  or  penalty  to  the  State,  which  is  barred  in  two  years, 

I  Vermont  Stats.  (1894),  §§  1196,  1198. 
5  §  10  of  the  Act. 

3  Appendix,  New  Hampshire. 

4  Appendix,  Massachusetts. 

5  Appendix.   Rhode  Island. 
*  Appendix,  Ohio. 

^  Appendix,  Michigan. 
8  Appendix,  Wisconsin. 
•Appendix,  Oregon. 
10  Appendix,  California. 

II  2  Minnesota  Stats.  (1894),  §§  5137,  5140. 


94  STATUTES   OF   LIMITATION.  [CHAP.   III. 

and  upon  penal  statutes  where  the  penalty  is  given  in  whole  or 
in  part  to  the  person  who  prosecutes,  which  are  barred  in  one 
year;  and  all  matters  not  otherwise  provided  for  are  barred  in 
ten  years,  which  necessarily  embraces  all  specialties  not  specially 
provided  for.  In  Kansas,  all  actions  upon  specialties  are  barred 
in  three  years.  In  Nevada,  specialties  come  under  the  general 
clause  of  §  16,1  and  are  barred  in  six  years,  except  actions  upon 
a  statutory  liability  other  than  a  penalty  or  forfeiture  which  are 
barred  in  three  years;  and  for  a  penalty  or  forfeiture  to  the  State 
in  two  years,  and  also  where  the  action  is  given  to  an  individual. 
In  Nebraska,2  actions  upon  specialties  are  barred  in  four  years, 
except  statutes  for  a  penalty  or  forfeiture,  which  are  barred  in 
one  year. 

SEC.  38.  When  Concurrent  Remedy  is  given  by  Statute.  — 
This  summary  shows  that  in  several  of  the  States  this  class  of 
claims  are  not  embraced  within  the  statute,  but  are  left  either  to 
the  operation  of  statutory  or  common-law  presumptions.  But, 
as  we  have  seen,  it  is  only  where  the  statute  creates  the  liability, 
and  is  directly  the  ground  of  the  action,3  that  it  is  exempt  from 
the  operation  of  the  statute.  Thus,  where  property  is  taken 
under  a  statute  which  also  provides  a  remedy  for  the  assessement 
of  consequential  or  other  damages,  the  statute  does  not  apply.4 
But  if,  instead  of  resorting  to  his  statutory  remedy,  a  party 
resorts  to  his  legal  title  and  common-law  remedy,  as  trespass  or 

1  Now  §  3718. 

9  Appendix,  Nebraska. 

3  Under  the  New  York  statute,  where  an  action  was  brought  against  a  stock- 
holder of  an  incorporated  trading  company,  the  charter  of  which  provided  that 
a  creditor  might,  after  judgment  obtained  against  the  corporation,  and  execu- 
tion returned  unsatisfied,  sue  any  stockholder  therefor,  it  was  held  that  the 
action  was  not  barred  in  three  years,  because  the  liability  was  not  created  by 
statute,  but  was  a  valid  claim  for  six  years.  Corning  v.  McCullough,  1  N.  Y. 
47.  The  form  of  the  action  was  assumpsit  here.  It  is  true  that  the  original 
claim  upon  which  the  judgment  sought  to  be  enforced  against  the  stockholder 
was  created  by  the  act  of  the  parties,  but  the  defendant's  liability  therefor  was 
created  by  the  statute,  and  could  not  exist  independently  of  it;  the  decision 
thus  appears  wrong,  and  the  doctrine  of  Story,  J.,  in  Bullard  v.  Bell,  1  Mason, 
(U.  S.)  243,  seems  the  true  one. 

*  Hannum  v.  West  Chester,  63  Penn.  St.  475:  (Forster  v.  Cumberland  Valley 
R.  Co.,  23  id,  371,  holding  a  contrary  doctrine,  was  overruled  by  Delaware,  L. 
&  VV.  R.  Co.  v.  Burson,  61  id.  360;)  McClinton  v.  Pittsburg,  etc..  R.  Co.,  66  id. 
4'>j.  A  municipal  assessment  is  not  within  the  statute.  Council  v.  Moyamens- 
ing,  2  Penn.  St.  224;   Magee  v.  Com'th,  46  id.  358. 


§  39-]  SPECIALTIES.  95 

ejectment,    the  statute   bars  his   claim    as  to    past  damages  in 
six  years.1 

Sec.  39.  Test  as  to  whether  Specialty  or  not.  —  The  test 
whether  a  statute  creates  a  specialty  debt  or  not  might  be  said 
to  be,  whether,  independent  of  the  statute,  the  law  implies  an 
obligation  to  do  that  which  the  statute  requires  to  be  done,  and 
whether  independently  of  the  statute  a  right  of  action  exists  for 
the  breach  of  the  duty  or  obligation  imposed  by  the  statute.  If 
so,  then  the  obligation  is  not  in  the  nature  of  a  specialty,  and  is 
within  the  statute,  so  long  as  the  common-law  remedy  is  pursued  ; 
but  if  the  statute  creates  the  duty  or  obligation,  then  the  obliga- 
tion thereby  imposed  is  a  specialty,  and  is  not  within  the  stat- 
ute.2 (a)     If  the  statute  imposes  an  obligation,  and  gives  a  special 

1  McClinlon  v.  Pittsburg,  etc.,  R.  Co.,  supra. 

*  In  Bullard  v.  Bell,  1  Mason,  243,  293,  under  a  statute,  it  was  sought  to 
recover  a  debt  due  from  a  corporation  against  one  of  its  stockholders.  The 
action  was  debt,  and  ihe  defendant  insisted  that  the  action  would  not  lie,  as  the 
undertaking  was  collateral,  and  was  barred  in  six  years,  as  any  other  simple 
contract  would  be.  But  the  court  held  that,  as  the  statute  created  the  liability. 
and  ihe  right  of  action  would  not  exist  independently  of  it,  the  case  was  not 
within  the  statute  of  limitations  then  existing  in  New  Hampshire  (where  the 
action  arose),  which,  as  to  "  specialties,"  was  identical  with  the  statute  21 
James  I.  Story,  J.,  said:  "  I  agree  at  once  to  the  position  that  the  bills  of  the 
bank  are  to  be  considered  originally  as  ihe  debts  of  the  corporation,  and  not  of 
the  corporators;  and,  except  from  some  special  provision  by  statute,  the  latter 
cannot  be  made  answerabie  for  the  acts  or  debts  of  the  former.  They  are 
altogether  in  law  distinct  persons,  and  capable  of  contracting  with  each  other. 
But  the  corporators  are  not  strangers  to  the  corporation.  On  the  contrary,  the 
law  contemplates  a  privity  between  them;  and  upon  that  privity  has  created 
an  obligation  on  the  corporators,  under  certain  circumstances,  to  pay  the  debts 
of  the  corporation.  Nothing  can  be  belter  settled  than  that  an  action  of  debt 
lies  for  a  duty  created  by  the  common  law  or  by  custom;  a  fortiori  it  must  lie 
where  the  duty  is  created  by  statute.  Whatever  is  enjoined  by  statute  to  be 
done  creates  a  duty  on  the  party,  which  he  is  bound  to  perform.  The  whole 
theory  and  practice  of  practical  and  civil  obligations  rest  upon  this  principle. 
When,  therefore,  a  statute  declares  that,  under  certain  circumstances,  a  stock- 
holder in  a  bank  shall  pay  the  debt  due  from  the  bank,  and  those  circumstances 
occur,  it  creates  a  direct  and  immediate  obligation  to  pay  it.  The  consideration 
must  be  collateral  or  not;  but  it  is  not  a  subject  of  inquiry,  and  to  deny  that  it 
is  a  duty  on  the  stockholder  to  pay  the  monev  is  to  deny  the  force  of  the  statute 
itself,  for  a  duly  is  nothing  more  than  a  simple  obligation  to  perform  that  which 

(a)  When  a  new  county  is  by  statute  of    the    new   county,  and   not  from  the 

made  liable  for  the  debts  of  the  former  time  when  the  original  debt  matured, 

county,    limitation    against    an    action  Robertson   v.    Blaine  County,  90  Fed. 

thereon  runs  only    from    the    creation  Rep.  63. 


96  STATUTES   OF   LIMITATION.  [CHAP.   III. 

remedy  therefor,  which  otherwise  could  not  be  pursued,  but  at 
the  same  time  a  remedy  for  the  same  matter  exists  at  common 
law  independently  of  the  statute,  and  the  statute  does  not  take 
away  the  common-law  remedy,  the  bar  of  the  statute  is  effectual 
when  the  common-law  remedy  for  the  breach  of  the  common-law 
duty  or  liability  is  pursued,  but  is  not  applicable  when  the  special 
statutory  remedy  is  employed.1  It  must  be  understood,  however, 
that  if  the  statute  merely  changes  the  remedies  existing  before 
and  the  change  is  general  as  to  a  particular  class  of  liabilities 
existing  before  the  application  of  the  statute  of  limitations  is  not 
affected,  as  it  is  the  nature  of  the  claim  upon  which  the  remedy 
is  predicated,  that  determines  this  question.2  (a) 

the  law  enjoins.  Here  then,  the  law  has  declared  that  the  stockholders  shal 
be  liable  10  pay  a  specific  sum,  and  it  imposes  on  them  a  duty  to  do  so.  How, 
then,  can  the  court  say  that  debt  does  not  lie,  since  there  is  a  duty  on  the 
defendant  to  pay  a  determinate  sum  of  money?  There  is  no  raeson,  under  this 
view  of  the  case,  for  entertaining  any  question  as  to  collateral  undertakings. 
The  law  has  created  a  direct  liability,  —  a  liability  as  direct  and  cogent  as 
though  the  party  had  bound  himself  under  seal  to  pay  the  amount,  in  which 
case  debt  would  undoubtedly  lie.  The  law  esteems  this  an  obligation  created 
by  the  highest  kind  of  specialty.  Indeed,  if  debt  would  not  lie  in  this  case,  it 
is  inconceivable  how  assumpsit  could.  There  is  no  pretense  of  any  express 
promise;  and  if  a  promise  is  to  be  implied,  it  must  be  because  there  is  a  legal 
liability,  independent  of  any  promise  to  sustain  one.  Now,  the  very  notion  of 
a  collateral  undertaking  is,  that  there  exists  no  legal  liability,  independent  of 
the  promise  to  create  a  duty.  And  if  there  exist  a  duty  sufficient  to  create  a 
promise,  then  it  is  sufficient  to  sustain  an  action  of  debt." 

1  McClinton  v.  Pittsburgh,  etc.,  R.  Co.,  supra.  In  Hannum  v.  West  Chester,  63 
Penn.  St.  475,  it  was  held  that,  where  property  has  been  damaged  by  a  public 
improvement,  the  statute  of  limitations  does  not  apply  to  the  remedy  given  by 
the  statuie  therefor;  but  in  the  case  first  cited  in  this  note,  where  lands  were 
taken  for  railroad  purposes,  it  was  held  that,  if  the  landowner  pursued  the 
statutory  remedy,  the  statute  of  limitations  did  not  apply  thereto,  but  that  if  he 
resorted  to  his  legal  title  and  brought  ejectment,  as  to  that  remedy,  the  statute 
did  apply. 

2  Murray  v.  East  India  Co.,  5  B.  &  Aid.  204.;  Copley  v.  Dorkmincque,  2  Lev. 
166;  Freeland  v.  McCullough,  1  Den.  (N.  Y.)  414.  In  De  Haven  v.  Bartholo- 
mew, 57  Penn.  St.  126,  the  court  says  that  it  is  the  nature  of  the  cause  of  action, 
and  not  the  remedy  itself,  which  determines  the  applicability  of  the  statute. 
In  Pease  v.  Howard,  14  Johns.  (N.  Y.)47g,  the  court  said:  "  The  words  '  action 
of  debt  founded  upon  any  contract  without  specialty,'  only  embrace  debts 
founded  upon  contract  in  fact,  not  such  as  arise  bv  construction  of  law." 

(a)  Where   a   land-grant    railroad  se-  chase   supposing  that  the  railroad  had 

lected  and  sold  lands  which  had  already  a  good  title;  but.it  appearing  subse- 

been  reserved  for  it  by  the  secretary  of  quently    that   the    lands    were    not  in- 

the   interior,    both    parties   to  the  pur-  eluded  in  the  gram,  Congress,  by  stat- 


§§  40,  40a.]  SPECIALTIES.  97 

SEC.  40.  Actions  for  Distributive  Share  of  Estate.  —  Actions 
for  the  distributive  share  of  the  personal  estate  of  an  intestate 
are  not  within  the  statute,1  (a)  nor  are  the  ordinary  actions  for 
the  recovery  of  legacies,  as  none  of  the  statutes  in  this  country 
have  adopted  the  provisions  of  the  statute  3  and  4  Wm.  IV.,  c. 
27,  the  fortieth  section  of  which  bars  all  action  for  the  recovery 
of  legacies  after  the  lapse  of  twenty  years.2  The  first-named 
English  statute  applies  to  all  legacies,  whether  charged  upon  land 
or  not,3  and  also  to  residuary  property.4  Previously  to  that  act, 
in  England,  as  is  still  the  case  in  this  country,  the  right  of  a 
legatee  was  never  barred  except  by  presumption  of  payment,  and 
this  presumption  could  never  be  raised  when  contrary  to  the  duty 
of  the  executor.  In  all  cases,  as  well  under  this  statute  as  in  the 
case  of  presumptions,  neither  the  statute  nor  the  presumption  of 
payment  attaches  until  twenty  years  after  a  present  right  to 
receive  the  same,  (b) 

Sec.  40a.  Patents,  Application  of  Statute  to.  —  The  question 
whether  the  statute  of  limitations  in  the  several  States  apply  to 
actions  for  the  infringement  of  patents  has  only  recently  been 
decided  by  the  Supreme  Court  of  the  United  States ;  previously  the 
question  had  been  variously  decided  in  the  different  circuits.5  (V) 

1  Pennepacker  v.  Pennepacker,  2  Clark  (Penn.)  114;  Patterson  v.  Nichol,  6 
Watts  (Penn.)  379.  Gemberling  v.  Myer,  2  Yeates  (Penn.)  341,  holding  a  con- 
trary doctrine,  was  directly  overruled  by  Pennepacker  v.  Pennepacker,  ante. 

'See  Stat.  3  &  4  Wm.  IV.,  §  40,  Appendix.  By  §  9,  Stat.  37  &  38  Vict.  c.  57, 
the  period  has  been  reduced  to  twelve  years. 

3Sheppard  v.  Duke,  9  Sim.  567;  Bullock  v.  Downes,  9  H.  L.  Cas.  1. 

*  Prior  v.  Horniblow,  2  Y.  &  C.  Ex.  200. 

6  In  the  following  cases  it  has  been  held  to  apply.  Parker  v.  Hawk,  2  Fish. 
Pat.  Cas.  58;  Hayden  v.  Oriental  Mills,  15  Fed.  Rep.  605;  Rich  v.  Ricketts,  7 
Blatch.  (U.  S.)  230;  Sayles  v.  Oregon  Cent.  Ry.  Co.,  6  Sawyer  (U.  S.)  31.     See 

ute,  asserted    the    government's    title,  not  barred  at  the  time  by  the  limitation 

limitation,   as  against  a  breach  of  the  applicable    to    unsealed    instruments, 

covenant  of  warranty  of  title,  was  held  Dyer   v.    Gill,    32    Ark.    410;     Hill    v. 

to  run  from  the  date  of  the  statute,  and  Gregory,  64  Ark.  317. 

not  from  that  of  the  deed.     Northern  (a)  See   Cannon   v.    Lynch,   112   Ga. 

Pac.    R.   Co.   v.  Montgomery,  86   Fed.  660. 

Rep.  251.  (/')  In  England,  the  lapse  of  twelve 

In  Arkansas,  it  is  held  that  the  con-  years  now  bars  an  action  for  a  legacy, 

stitudonal  convention  of  1874  had  power  under  37  &  38  Vict.  c.  57,  §  8.     See  In 

to  restore  the  application  of  the  statutes  re  Swain,  [1891]  3  Ch.  233. 

of    ten    years    to    sealed    instruments  (c)  In  Campbell  v.   Haverhill,  155  U. 

executed  after  the  adoption  of  the  Con-  S.   610,  613,  it   was  finally  settled  that 

stitution  of  1868,  which  abolished   pri-  the  statutes  of  limitations  of  the  several 

vate   seals,   when    the  instrument  was  States  apply  to  actions  at  law  for  the 
[stats,  of  lim.  — 6.] 


98  STATUTES   OF   LIMITATION.  [CHAP.    III. 

The  author's  view  was,  the  State  statutes  did  not  apply  to  a  dis- 
tinctly Federal  right ;  that  where  a  right  is  created  by  statute,  and 
has  no  existence  except  as  a  creation  of  the  statute,  and  a  specific 
and  exclusive  remedy  is  given  therefor,  it  is  regarded  as  a 
specialty ;  in  any  event,  if  the  State  statute  should  be  held  appli- 
cable to  this  class  of  actions,  it  would  only  be  subject  to  the 
statute  which  applies  to  specialty  obligations;  and  in  most  of  the 
States  it  is  held  that  the  statute  of  limitations  has  no  application 
to  actions  predicated  upon  a  statute,  unless  it  is  specially  so 
provided.1  (a) 

May  v.  Buchanan,  29  Fed.  Rep.  469;  Wood  v.  Cleveland  Rolling  Mill  Co.,  4 
Fisher,  550;  Collins  v.  Peebles,  2  id.  541:  Wetherill  v.  New  Jersey  Zinc  Co.,i 
B  &  A.  (U.  S.)  105;  Reed  v.  Miller,  2  Biss.  (U.  S.)  12;  May  v.  Co.  of  Rolls,  31 
Fed.  Rep.  473;  May  v.  Cass  Co.,  30  id.  762;  Sayles  v.  Louisville,  etc.,  R.  R.  Co., 
9  id.  515;  May  v.  Buchanan  Co.,  29  id  469;  Hayward  v.  St.  Louis,  11  id.  427, 
May  v.  Fond  du  Lac  County,  27  id.  691;   McGinnis  v.  Erie  Co.,  45  id.  91. 

1  See  supra,  §  19,  and  notes  thereto.  See  also  §§  36-39,  and  authorities 
cited. 

infringement  of  patents  for  inventions,  limitation  when  their  general  chancery 
Later,  by  the  Act  of  March  3,  1897,  c.  powers  are  not  thereby  curtailed.  Tice 
391,  §  6  (29  Stats,  at  Large,  6to),  Con-  v.  School  District,  17  Fed.  Rep.  283: 
gress  provided:  "  But  in  any  suit  or  Frishmuth  v.  Farmers*  Loan  &  Trust 
action  brought  for  the  infringemenl  of  Co.,  95  id.  5;  Reynolds  v.  Lyon  County, 
any  patent  there  shall  be  no  recovery  97  id.  155;  Bisbee  v.  Evans,  id.  474; 
of  profits  or  damages  for  any  infringe-  Bradley  v.  Cole  (Iowa).  25  N.  W  849, 
ment  committed  more  than  six  years  863,  n.  Federal  couits  of  equity  are 
before  the  filing  of  the  bill  of  complaint  not,  however,  precluded  by  such  State 
or  the  issuing  of  the  v/rit  in  such  suit  statutes  from  applying  the  doctrine 
or  action,  and  this  provision  shall  ap-  of  laches  in  cases  of  less  delay  than 
ply  to  existing  causes  of  action."  The  that  provided  by  such  statutes.  Con- 
last  clause"  existing  causes  of  action  "  tinental  Nat.  Bank  v.  Heilman,  86  Fed. 
applies  to  suits  for  infringement.  Rep.  514.  In  construing  State  statutes 
though  the  patents  were  issued  prior  to  these  courts  follow  the  decisions  of  the 
the  statute,  and  to  all  suits  and  ac-  State  courts,  and  are  largely  governed 
tions,  even  when  delayed  to  learn  the  by  the  circumstances  of  the  particular 
result  of  test  cases  upon  like  questions,  case,  and  the  injury  caused  bv  the  de- 
American  Pneumatic  Tool  Co.  v.  Pratt  lay  to  the  other  party.  Taylor  v. 
&  Whitney  Co.,  106  Fed.  Rep.  229.  As  Holmes,  127  U.  S.  489;  Jones  v.  Per- 
to  laches  in  patent  suits,  see  Richard-  kins,  76  Fed.  Rep.  82;  Old  Colony 
son  v.  D.  M.  Osborne  &  Co.,  82  Fed.  Trust  Co.  v.  Dubuque  Light  Co.,  89  id. 
Rep.  95,  36  C.  C.  A.  610,  and  n.  794;   Hanchett    v.    Blair,    100   id.    817. 

(11)  Suits  to  annul  land  patents  must  In  these  courts,  the  objection  of  undue 
now  be  brought  within  five  or  six  years  lapse  of  time  may  be  raised  by  the 
under  the  Act  of  Congress  of  March  2,  court  and  held  a  bar,  though  not  relied 
1  |6,  c.  39(2917.  S.  Stats,  at  Large)  42.  upon  in  the  pleadings.  Sullivan  v. 
The  right  of  a  State  to  set  aside  one  of  Portland  &  Kennebec  R.  Co.,  94  U.  S. 
its  land  patents  for  fraud  is  not  cur-  806;  Taylor  ?'.  Holmes,  127  id.  489; 
(ailed  t>v  the  statute  of  limitations.  Norris  v.  Haggin,  136  id.  386;  Ham- 
State?'.  Burnett  (Tex.  Civ.  App.),  59  S.  mond  t.  Hopkins,  143  id.  224. 
W.  599.  All  the  courts  of   the    United    States, 

The  Federal  courts  of  equity  apply,  in  the  absence  of  legislation  by  Con- 
by  analogy,  the  local  State  statutes  of  gress  upon   the   subject,  recognize    the 


§  40a.J 


SPECIALTIES. 


99 


statutes  of  limitations  of  the  several 
States,  and  give  them  the  same  con- 
struction and  effect  as  are  given  by  the 
local  tribunals.  They  are  a  rule  of 
decision  under  §  34  of  the  Judicial  Act 
of  1789;  and,  as  tne  construction  given 
to  a  statute  of  a  State  by  its  highest 
judicial  tribunal  is  regarded  as  a  part 
of  the  statute,  and  is  as  binding  upon 
the  courts  of  the   United  States  as  ihe 


text,  new  views  adopted  by  such  high- 
est tribunals  as  to  the  construction  of 
such  a  statute,  though  reversing  its 
former  decisions,  are  followed  by  the 
U.  S.  Supreme  Court.  Leffingwell  v. 
Warren,  2  Black.  (U.  S.)  599,  603;  Bau- 
serman  v.  Blunt,  147  U.  S.  647,  653, 
Brady  v.  Daly,  175  U.  S.  148,  158;  Bal- 
kam  v.  Woodstock  Iron  Co.,  154  U.  S. 
177,  189. 


IOO  STATUTES   OF   LIMITATION.  [CHAP.  IV. 


CHAPTER  IV. 
Available  for  and  Against  Whom. 

Sec.  41.  Personal  Privilege.  Sec.  48.   Commencement     of     Action, 

42.  Limitations  by  Contract.  What  is. 

43.  Effect    of     War     upon    Con-  49.   Delay  induced  by  Defendant. 

ditions.  50.  When  Claim  arises. 

44.  Premature  Actions.  51.  Waiver  of  Limitation. 

45.  When  Adjustment  is  essential  52.  Against  whom  Statute  may  be 

46.  Effect  of  Appointment  of  Re-  enforced.     State. 

ceiver.  53.   Municipal  Corporations. 

47.  Parol  Contracts.  Counties,  etc. 

SEC.  41.  Personal  Privilege.  —  The  plea  of  the  statute  of 
limitations  is  generally  a  personal  privilege,  and  may  be  waived 
by  a  defendant,  or  asserted,  at  his  election ;  but  where  he  has 
parted  with  his  interest  in  property,  his  grantees,  mortgagees,  or 
other  persons  standing  in  his  place  are  entitled  to  avail  themselves 
of  all  the  advantages  of  this  plea.'-  (a)    But  it  has  been  held  that  an 

1  Grattan  v.  Wiggins,  23  Cal.  16;  Lord  v.  Morris,  18  id.  4S2;  Biddle  v.  Moore, 
3  Penn.  St.  161;  Dawson  v.  Callaway,  iS  Ga.  573;  Skidmore  z.  Romaine,  2 
Bradf.  (N.  Y.  Surr.)  122;  Ferguson  v.  Broome,  1  id.  10.  Failure  of  a  party  to 
set  up  the  statute  by  plea  waives  the  privilege.  Sturges  v.  Burton,  8  Ohio  St. 
215.  The  courts  even  refuse  to  allow  the  amendment  of  a  defective  plea, 
although  the  effect  is  to  deny  to  the  defendant  this  statutory  privilege.  John- 
son v.  Green,  4  G.  &  J.  (Md.)  381;  Nelson  v.  Bond,  1  Gill  (Md.)  218;  Reed  v. 
Clark,  3  McLean  (U.  S.)  4S0.  A  grantee  may  reply  to  a  plea  of  the  statute 
anything  which  his  grantor  might  have  replied.  Ford  v.  Langel,  4  Ohio  St. 
464.  In  Maples  v.  Mackey,  89  N.  Y.  146,  it  was  held  that  where  a  judgment  by 
default,  rendered  by  a  court  of  general  jurisdiction,  recites  that  the  summons 
was  personally  served  upon  defendant,  the  recital  shows  that  the  court  acquired 
jurisdiction,  and  that  a  defect  in  the  proof  of  service  attached  to  the  judgment 
roll  does  not  affect  the  judgment. 

(a)  The  right  to  rely  on  the  statute  i2g  U.  S.  465;  Hanchett  v.  Blair,  100 
of  limitations  is  a  personal  privilege  Fed.  Rep.  817,825;  Sheppard's  Estate, 
which  mav  be  waived.  Dawson  v.  180  Penn.  St.  57.  It  is  also  a  right 
Edwards  (189  111.),  59  N.  E.  590;  which  may  be  availed  of  by  those  in 
Smull's  Estate,  9  Penn.  Dist.  R.  532;  privity,  as  in  the  familiar  case  where 
Welton  v.  Hoggs,  45  W.  Va.  620;  Schu-  a  statute  of  limitations  is  interposed 
t.rrih  v,  Schillo,  177  HI.  346;  Cart-  for  the  protection  of  the  estates  of  de- 
wright  v.  Cartwright,  68  111.  App.  74.  cedents,  which,  though  in  terms  apply- 
Neither  a  creditor  nor  anv  other  person  ing  only  to  actions  against  executors 
has  legal  cause  to  complain  if  a  debtor,  and  administrators,  yet  may  be  relied 
when  sued,  neglects  or  refuses  to  plead  on  by  heirs  and  distributees,  devisees 
this  statute  in  defense.     Allen  v.  Smith,  and  legatees,  when  they  are  impleaded 


§  41.]  AVAILABLE  FOR  AND  AGAINST  WHOM.  IOI 

equitable  owner  of  land,  subject  to  a  ground-rent  reserved  by  deed, 
cannot  interpose  the  statute  as  a  bar  to  an  action  for  the  rent.1 
A  cestui  que  trust  may  set  up  the  statute  whenever  his  trustee 
might  do  so;2  and  where  an  executor  or  administrator  in  an 
action  against  him,  as  such,  fails  to  plead  the  statute,  the  heirs 
or  legatees  may  take  advantage  of  it  when  the  creditor  undertakes 
to  subject  the  lands  in  his  hands  to  the  debt ; z  and  generally  any 
person  in  privity  with  the  claim  sought  to  be  enforced  may  set 
up  the  statute  in  bar  thereto,  as  an  executor,  administrator, 
assignee,4  trustee,  or  any  person  who  can  be  said  to  stand  in  the 
place  and  stead  of  the  person  for  whose  benefit  the  statute  inures.5 
But  a  mere  stranger  to  the  claim,  as  a  creditor  of  such  person, 
although  he  may  be  injuriously  affected  by  his  debtor's  failure  to 
set  up  the  statute,  cannot  either  set  it  up  himself,  or  compel  his 
debtor  to  do  so,  as  in  such  cases  the  privilege  is  personal.6  (a) 
The  latter  may,  by  contract,  waive  his  right  to  set  up  the  stat- 
utory bar,  and  in  that  case  the  statute  is  quieted  up  to,  and 
begins  to  run  afresh  from,  the  time  when  the  contract  or  agree- 
ment was  entered  into;  but  while  he  may  by  a  positive  act,  as 
by  an  agreement  not  to  set  up  the  statute,  deprive  himself  of  its 

1  Elkinton  v.  Newman,  20  Penn.  St.  281. 

4  Maddox  v.  Allen,  1  Met.  (Ky.)  495;  Herndon   v.    Pratt,  6  Jones  Eq.  (N.  C.) 
327;  Prescott  v.  Hubbell,  1  Hill  (S.  C.)  Ch.  210. 
3  Peek  v.  Wheaton,  M.  &  Y.  (Tenn.)  353. 
4Mitchellree  v.  Veach,  31  Penn.  St.  455. 
*  Maddox  v.    Allen,  supra;  Grattan  v.  Wiggins,  supra. 
'See  Sanger  v  Nightingale,  122  U.  S.  176;  Armstrong  v.  Croft,  3  Lea  (Tenn.)  191. 

by  the  creditors  of  the  estate.  Woods  between  parties  or  privies.  In  re  Lid- 
s'. Woods,  99  Tenn.  50,  57.  See  Hill  v.  iard's  Contract,  42  Ch.  D.  254,  258. 
Hilliard,  103  N.  C.  34;  McClaugherty  v.  Statutes  of  limitation  take  only  the 
Croft,  43  W.  Va.  270.  And  so  of  other  force  which  their  provisions  give,  and 
creditors  and  of  assignees.  Walker  v.  the  fact  that  the  remedy  existing  in  be- 
Burgess,  44  W.  Va.  399;  Callaway  v.  half  of  one  party  may  in  its  result 
Saunders  (Va.),  38  S.  E.  182;  40  Am.  operate  indirectly  for  the  benefit  of 
L.  Reg.  (U.  S.),  435.  another,  whose  right  of  action  is  barred 

An   agreement  to  waive  the  statute  by    the    statute,   does    not    necessarily 

for  a  limited  time  is  not  against  public  force  the  application  of   the   statute  so 

policy.     State    Loan    &    Trust   Co.    z.  as  to  bar  the  former.     Re  Rogers,  153 

Cochran,  130 Cal,  245.     But  see  Wright  N.    Y.    316,    325.       Payments    upon    a 

v.  Gardner,  9S  Ky.  454;   infra,  §  76,  and  promissory   note   by  the  maker  or  in- 

n.   (a).     A    signed   endorsement   on    a  dorser  do   not  stop  the  running  of   the 

note  of  "  good  at  any  time,"  or  "  I  will  statute  as   to  a  guarantor,  as  it  is  not 

pay  this  note  at  any  time,"  amounts  to  sufficient  that  the  contract  may  be  con- 

an  acknowledgment  and  new  promise,  nected  with  or  grow  out  of  the  same  in- 

but   is    not   a  waiver  of   the  statute  of  strument,  but  there  must  be  a  joint  lia- 

limitations.     Rowell   v.    Lewis,  72  Vt.  bility  upon  the  identical  contract.   Mad- 

163.  dox  v.  Duncan,  143  Mo.  613;  Corbyn  v. 

(a)  An  estoppel  by  deed  arises  only  Brokmeyer,  84  Mo.  App.  649,  653. 


102  STATUTES   OF    LIMITATION  [CHAP.   IV. 

benefits,  he  cannot  be  prevented   from   relying   upon  it  at  law  by 
a  merely  equitable  estoppel.1 

SEC.  42.  Limitations  by  Contract.  —  Although  not  strictly 
within  the  purview  of  this  work,  it  is  deemed  advisable  to  say- 
that  the  parties  to  a  contract  may,  by  an  express  provision  therein, 
provide  another  and  different  period  of  limitation  from  that  pro- 
vided by  statute,  and  that  such  limitation,  if  reasonable,  will  be 
binding  and  obligatory  upon  the  parties.  This  species  of  limi- 
tation is  more  frequently  resorted  to  in  insurance  contracts,  but 
there  can  be  no  sort  of  question  but  that  it  may  equally  well  be 
extended  to  any  species  of  contract.2  The  rule  is  that  while  the 
parties  to  a  contract  cannot  by  anything  contained  therein  oust 
the  jurisdiction  of  the  courts,  yet  they  may  lawfully  contract  to 
limit  the  time  within  which  an  action  upon  such  contract  shall  be 
brought,  ami  the  limitation  so  imposed  is  binding  upon  the  par- 
ties.3    Thus  the  provisions  in   a  policy  of  insurance  in   reference 

1  Bank  of  Hartford  County  v.  Waterman,  26  Conn  324.  "  Strong  equitable 
considerations  in  favor  of  the  present  plaintiffs  seem  to  glow  out  of  the  fact  that 
they  were  actually  betrayed  into  ignorance  of  their  rights  by  the  wrongful  acts 
of  the  defendani  himself,  that  they  were  misled  by  the  very  record  to  which 
they  might  and  should  rightfully  refer  for  knowledge  of  their  rights,  and  of 
which  the  defendant  was  himself  the  author,  having  verified  it  under  his  official 
oath.  It  is  palpably  unjust  for  the  defendant  to  set  up  the  statute  as  a  defense 
under  such  circumstances;  to  do  so  is  in  one  sense  taking  advantage  of  his  own 
wrong.  Yet  it  is  difficult  to  see  that  he  is  not.  by  the  clear  provisions  of  the 
Statute  its  If,  protected  in  so  doing;  nor  are  we  aware  of  any  well-established 
doctrine  by  which  a  party,  in  a  court  of  law,  can  be  prohibited,  on  the  score  of 
equitable  estoppel,  from  defending  himself  under  a  public  sfatute,  designed  to 
be  of  universal  application  in  the  matter  of  legal  remedies." 

,;  In  Gulf,  etc.,  R.  Co.  v.  Gatewood,  79  Tex.  89,  this  rule  was  applied  to  a  limi- 
tation on  a  bill  of  lading. 

■Ames  v.  New  York  Ins.  Co.,  14.  N.  Y.  453;   Peoria  Ins.  Co.  v.  Whitehill,  25 

HI.   466;   Franklin    Fire   Ins.    Co.   v.    Updegraff,  43   Penn.  St.  350;  Williams  v. 

Vermont  Mut.  Ins.  Co.,  20  Vt.222;  Wilson  v.  /Etna  Ins.  Co..  27  id.  99;  Edwards 

r .  Lycoming  Ins.  Co.,  75  Penn.  St.  378;  Beatty  .-.  Lycoming  Ins.  Co.,  66  id.  9; 

Brown  v.  Savannah  Ins.  Co.,  24  Ga.  101 ;  Carter  v.  Humboldt  Ins.  Co.,  12  Iowa, 

Davidson  v.   Phoenix   Ins.  Co.,  4  Sawyer  (U.  S.)  594;   Keim  v.  Home  Ins. 

t'   Mo.   38;   Patrick  t.  fanners'   Ins.  Co., 43  N.  II.  021;   Insurance  Co.  v. 

(5  Tex.  263;    Brown  v.  Hartford  Ins.  Co.,  5  R.  I.  304;  Portage  Co.  Ins. 

M11I.    v,    1  B  I  Ihio,  4S?;    Roach  v.  New  York  &  Erie  Ins.  Co.,  30  N.  Y.  54O: 

Am.-  ■Inn  v  v.  Bow  lit>  li    Ins.  Co.,  6  Gray  (Mass.)  603;   Woodbury  Savings  Hank 

(  (1  arte  1    Oak    Ins   Co.,  31  Conn,  518;  Gooden  -■.  Amoskeag   Ins.  Co.,  20  N. 

II.    73;    MrFarland    v.     IVabodv    Ins.    Co..    (.    \V.  \'a.    625;    Ripley    i\  /Etna    Ins. 

,  Barb.  (N.   Y.)  552.     [n   Maine,    by  statute,   such   a  stipulation  in  tht 
poll,  v   [g   nugatory,    arid    the    policy    holder   has    two    years   from   the    time   of 


§  42-]  AVAILABLE  FOR  AND  AGAINST  WHOM.  103 

to  proofs  of  loss,  as  well  as  for  enforcing  a  claim  therefor,  must 
be  complied  with,  unless  the  insurer  has  done  that  which  amounts 
to  a  waiver  of  compliance;  and,  in  order  to  amount  to  a  waiver, 
the  insurer  must  have  done  that  which  justified  the  assured  in 
remaining  inactive.  The  mere  pendency  of  negotiations  between 
the  parties,  or  the  fact  that  occasional  interviews  have  been  had 
between  them,  in  regard  to  the  adjustment  of  the  loss,  has  been 
held  not  to  amount  to  a  waiver.1  The  conduct  of  the  insurer 
must  be  such  as  to  amount  to  an  agreement,  express  or  implied, 
to  suspend  the  legal  remedies,2  or  as  would  operate  as  a  fraud 
upon  the  insured.  Thus,  if  an  insurance  company  holds  out 
hopes  of  an  adjustment,  and  thereby  induces  delay,  it  is  estopped 
from  setting  it  up  in  bar  of  the  action.3  (a) 

The  condition,  being  a  mere  matter  of  contract,  may  be  waived) 
either  expressly  or  by  implication;  and  when  the  insurer,  by  any 
act  of  his,  causes  the  delay,  or  prevents  the  bringing  of  the  action 
within  the  time,  strict  compliance  is  not  necessary.4  Thus,  where 
the  defendant  was  a  foreign  corporation,  and  no  agent  upon 
whom  process  could  be  served  could  be  found  within  the  time 
limited,  this  was  held  a  sufficient  excuse  for  not  bringing  the 
action  within  the  period  limited.  The  assured  is  not  bound  to 
pursue  the  company  in  its  own  domicile,  but  may  wait  until 
process  can  be  served  upon  it  in  the  State  where  he  resides;  and 
if  delay  is  thus  entailed,  it   is  excused,  as  it  is  the  duty  of  the 

■loss  within  which  to  bring  his  action.  Dolbier  v.  Agricultural  Ins.  Co.,  67 
Me.  180. 

1  McFarland  v.  Peabody  Ins.  Co.,  6  W.  Va.  425;  Gooden  v.  Amoskeag  Ins. 
Co.,  20  N.  H.  73.  See  Sleen  v.  Niagara  Fire  Ins.  Co.,  8g  N.  Y.  315;  Johnson  v. 
H.  Ins.  Co.,  91  111.  93,  33  Am.  Rep.  47;  Fullam  v.  N.  Y.  U.  Ins.  Co.,  7  Gray 
(Mass.)  61;   Donnelly  v.  City  of  Brooklyn,  121  N.  Y.  9. 

s  Gocden  v.  Amoskeag  Ins.  Co.,  supra. 

3  Grant  r.  Lexington,  etc.,  Ins.  Co.,  5  Ind.  23. 

4  Peoria  Ins.  Co.  z.  Hall,  12  Mich.  202. 

(a)  Where  an  application  for  an  acci-  agreement  being  void  under  the  Mis- 
dent  insurance  policy,  or  certificate,  souri  statute,  it  was  held  that  the  law 
contained  a  provision  that  "  the  con-  of  Missouri  applied  to  a  contract  of  in- 
tract  when  made  shall  be  held  and  surance  made  in  Missouri  with  the  de- 
construed  in  all  times  and  places  to  fendant's  authorized  agent,  the  defend- 
have  been  made  in  the  city  and  county  ant  being  a  foreign  corporation  doing 
of  San  Francisco,  Cal.,"  a  contractual  business  there  under  license  from  the 
limitation  for  bringing  suits  on  insur-  State.  Karne:s  v.  American  Fiie  Ins. 
ance  policies  being  there  valid  Ihough  Co.,  144  Mo.  413;  Summers  v.  Fidelity 
the  period  is  less  than  the  ordinary  Mutual  Aid  Ass'n,  84  Mo.  App.  605. 
period  of  statutory  limitation,  but  such 


104  STATUTES   OF   LIMITATION.  [CHAP.   IV. 

insurer,  if  it  means  to  insist  upon  the  condition  to  render  it  pos- 
sible for  the  insurer  to  comply  with  the  condition,  to  have  a 
known  agent,  upon  whom  process  may  be  served,  in  the  State 
where  the  insurance  is  made.  So  it  seems  that  compliance  as  to 
time  may  be  excused  when  the  nature  of  the  loss  and  the  interest 
of  the  assured  therein  are  such  that  their  extent  or  value  cannot 
be  determined  within  the  time  limited.  Thus,  it  has  been  held 
that  a  condition  that  an  action  must  be  brought  within  a  certain 
time  after  the  loss  will  not  bar  an  action,  brought  after  the  time 
had  elapsed,  upon  a  policy  in  which  the  interest  insured  was  a 
mechanic's  lien,  when  it  was  impossible  to  fix  the  value  of  the  lien 
within  the  prescribed  time.1  A  condition  that  no  suit  shall  be  sus- 
tainable unless  commenced  within  six  months  after  a  loss  occurs, 
and  also  that  the  paymnt  of  losses  shall  be  made  in  sixty  days 
from  the  date  of  the  adjustment  of  preliminary  proofs  of  loss  by 
the  parties,  must  be  so  construed  as  not  to  conflict  unnecessarily 
with  each  other;  and  where  the  parties,  in  good  faith,  and  with- 
out any  objection  that  unnecessary  time  is  taken  for  the  purpose, 
are  occupied  so  long  in  adjusting  proofs  that  sixty  days  from  the 
date  of  adjustment  does  not  expire  within  the  six  months,  the 
policy  does  not  become  forfeited  merely  because  the  suit  is  not 
brought  within  six  months  and  before  the  loss  is  payable.  An 
action  brought  promptly  upon  the  expiration  of  sixty  days  from 
the  adjustment  of  loss  is  not  barred  because  commenced  more  than 
six  months  after  the  loss  occurred.  Where  objections  are  made 
by  the  insurers  to  the  preliminary  proofs  of  loss,  the  sixty  days 
are  not  to  be  deemed  to  commence  until  after  a  reasonable  time 
for  the  insured  to  examine  the  objections. 

Where  the  policy  stipulates  or  the  charter  of  the  company  pro- 
vides that,  unless  the  insured  is  satisfied  with  the  decision  of  the 
company  in  reference  to  the  settlement  of  the  loss,  an  action  shall 

1  Longhurst  v.  Star  Ins.  Co.,  19  Iowa,  364.  But  opposed  to  this  doctrine  see 
Eastern  R.  R.  Co.  v.  Relief  Ins.  Co.,  supra,  where  it  was  held  thai  a  railroad 
company  insured  against  losses  from  the  destruction  of  property  along  its  line 
by  sparks,  etc.,  from  its  engines,  for  which,  by  the  terms  of  the  policy,  proofs 
were  required  to  be  made  in  sixty  days,  could  not  wait  until  such  claims  were 
adjusted  and  their  amount  ascertained.  See  Wright  v.  Mutual  Benefit  Life 
Ass'n,  118  N.  Y.  237,  as  to  a  certificate  of  membership  and  insurance  upon  the 
life  of  one  payable  to  another;  Ames  v.  New  York  Union  Ins.  Co.,  14  N.  Y.  253; 
New  York  v.  Hamilton,  etc..  Ins.  Co.,  10  Bosw.  (N.  Y.)  537;  Amesbury  v. 
Mutual  Fire  Ins.  Co.,  6  Gray  (Mass.)  596;  Cooper  7'.  U.  S.  M.  B.  A.,  132  N.  Y. 
334;   King  v.  Watertown  F,  Ins.  Co.,  47  Hun,  1. 


§  42-]  AVAILABLE  FOR  AND  AGAINST  WHOM.  105 

be  brought  in  the  next  court  to  be  held  in  the  county,  if  one  is 
to  be  held  within  sixty  days,  otherwise  before  the  next  court,  the 
condition  must  be  complied  with,  or  the  insurer  is  relieved  from 
liability.1  And  the  same  is  true  where  any  condition  as  to  the 
time  of  bringing  an  action  upon  the  policy  is  violated.2  (#) 

'  Portage  Ins.  Co.  v.  West,  6  Ohio  St.  599:  Dutton  v.  Ins.  Co.,  17  Vt.  369. 
Where  one  of  the  conditions  of  a  policy  provided  that  no  suil  should  be  begun 
more  than  six  months  after  any  loss  or  damage,  and  subsequent  condition  pro- 
vided that  payment  of  losses  should  be  made  in  sixty  days  after  the  adjustment 
of  the  preliminary  proofs  of  loss,  it  was  held  that  these  two  provisions  should 
be  construed  together,  and  that  the  six  months  did  not  begin  to  run  until  the 
expiration  of  the  sixty  days.  Mayor  of  New  York  v.  Hamilton,  etc.,  Ins.  Co., 
39  N.  Y.  45.  The  policy  contained  a  condition  that  a  party  dissatisfied  with  the 
refusal  of  the  company  to  pay  the  insurance  should  bring  an  action  at  the  next 
term  of  court  to  be  held  in  the  county,  unless  such  court  should  sit  within  sixty 
days  after  the  refusal  to  pay,  and  in  that  case  at  the  next  term  after  the  sixty 
days;  and,  unless  suit  was  so  brought,  all  claim  under  the  policy  should  be 
forfeited.  It  was  held  that  an  insured  who  failed  to  bring  his  action  at  the  first 
term,  hsld  more  than  sixty  days  after  the  refusal  to  pay  the  insurance,  was  pre- 
cluded from  subsequently  maintaining  his  action.  Keim  v.  Home  Ins.  Co.,  42 
Mo.  38.  By  the  terms  of  a  policy,  the  insurers,  in  case  of  loss,  were  allowed 
sixty  days  in  which  to  pay  the  loss.  It  was  held  that  a  general  denial  of  any 
liability  on  the  part  of  the  company  enabled  the  insured  to  bring  an  action  at 
once.  Norwich,  etc.,  Trans.  Co.  v.  Western  Mass.  Ins.  Co..  34  Conn.  561.  An 
insurance  policy  stipulated  that  the  company  should  not  be  liable  to  pay  until 
after  the  sixty  days  from  the  loss.  Pending  these  sixty  days  a  petition  was 
filed.  It  was  held  that  the  irregularity  could  be  cured  by  a  supplemental 
petition.  The  want  of  validity  in  the  notice  upon  the  agent  of  an  insurance 
company  is  waived  by  their  subsequent  appearance  and  pleading.  Franklin 
Ins.  Co.  v.  McCrea,  4  Greene  (Iowa)  229. 

8  Ripley  v.  ^Etna  Ins.  Co.,  30  N.  Y.  136;  Roach  v.  New  York  Ins.  Co.,  id.  546; 
Brown  v.  Savannah  Mut.  Ins.  Co.,  24  Ga.  97. 

(a)  Apart  from  statute,  stipulations  F.  Ins.  Co,,  51  Fed.  Rep.  7S9;  Tiavel- 
in  insurance  policies  which  limit  the  lers'  Ins.  Co.  v.  California  Ins.  Co.  (N. 
time  for  suits  thereon  are  usually  held  D.),  8  L.  R.  A.  769,  and  n.;  Cooper  v. 
valid,  even  when  such  stipulated  time  U.  S.  Mut.  Benefit  Ass'n  (132  N.  Y. 
is  shorter  than  that  expressly  allowed  334),  28  Am.  St.  Rep.  581,  and  n.; 
by  statute  for  such  suits.  See  Thomp-  Lentz  v.  Teutonia  F.  Ins.  Co.,  96  Mich, 
son  v.  Phenix  Ins.  Co.,  136  U.  S.  287;  445;  Egan  v.  Oakland  Ins.  Co.,  29 
Hart  v.  Citizens'  Ins.  Co.,  86  Wis.  77;  Oregon,  403;  State  Ins.  Co.  v.  Mees- 
Shacketl  v.  People's  Mut.  Benefit  So-  man,  2  Wash.  St.  459;  Lowe  v.  U.  S. 
ciety,  107  Mich.  65;  Met'n  L.  Ins.  Co.  Mut.  Ace.  Ass'n,  115  N.  C.  18;  Mass. 
v.  Dempsey,  72  Md.  288;  Graham  v.  Benefit  L.  Ass'n  v.  Hale,  96  Ga.  802; 
Niagara  F.  Ins.  Co.,  106  Ga.  840;  Phillips  v.  Union  Central  L.  Ins.  Co., 
Everett  v.  Niagara  Ins.  Co.,  142  Penn.  101  Fed.  Rep.  33;  Hong  Sling  v.  Royal 
St.  322;  Taylor  v.  Merchants  &  Bank-  Ins.  Co.,  8  Utah,  135.  If  the  insur- 
ers' Ins.  Co.,  83  Iowa,  402;  Morrill  v.  ance  company  absolutely  refuses  pay- 
New  England  F.  Ins.  Co., '71  Vt.  28r;  ment,  the  insured  may  sue  before  such 
Allemania  F.  Ins.  Co.  v.  Peck,  133  111.  stipulated  time  has  expired.  Northern 
220;  McElroy  v.  Continental  Ins.  Co.,  Ass.  Co.  v.  Hanna  (Neb.),  82  N.  W.  97; 
48  Kan.  200.     See  Small  v.  Westchester  Veginan  v.  Morse,  160  Mass.  143;  Far- 


Io6  STATUTES    OF    LIMITATION.  [CHAP.   IV. 

SEC.  43.  Effect  of  War  upon  Conditions.  —  Where,  by  the 
policy,  right  to  sue  on  it  ceased  within  twelve  months  after  loss, 
and  the  plaintiff  was  prevented  from  suing  by  reason  of  war,  and 
did  not  actually  sue  until  more  than  twelve  months  after  loss, 
exclusive  of  the  time  of  the  war,  it  was  held  that,  although  the 
statute  of  limitations  is  capable  of  enlargement  to  accommodate 
a  precise  number  of  days  of  disability,  yet  the  contract  in  a  policy 
of  insurance  is  not ;  and  that  this  clause  of  the  contract  is  rebutted 
by  the  state  of  war,  and  is  not  presumed  to  revive  when  the  war 
ceases.1 

SEC.  44.  Premature  Actions.  —  Where  the  policy  provides  that 
the  loss  shall  be  payable  within  sixty  days,  ninety  days,  or  any 
other  period  after  proof  of  loss  is  made,  an  action  brought  within 
the  period  limited  is  premature.2 

1  Semmes   v.   City   Fire   Ins.   Co.,  13  Wall.  (U.  S.)   158;   Phoenix   Ins.   Co.   v. 
Underwood,  12  Heisk.  (Tenn.)  424.     See  Glass  v.  Walker,  66  Mo.  82. 
2Camberling   v.    M'Call,    2    Dall.    (Penn.)  2S0;   Davis  v.    Davis,  49  Me.  282; 

rell  f.  German  Am.  Ins.  Co.,  175  Mass.  Ion,  45  Neb.  554;  Railway  Conductors' 

34.0;  Sample   v.    London   &    L.    F.  Ins.  Mut.  Aid  Ass'n  v.  Loomis,  142  111.  560; 

Co.,  46   S.    C.  491,  47  L.  R.  Ann.  696,  Law  v.  New  England  Mut.  Ace.  Ass'n, 

and  n.;  Cascade   F.   &   M.   Ins.  Co.  v.  94  Mich.  266;   Met'n  Safety  Fund  Ace. 

Journal  Pub.  Co.,  1  Wash.  St.  452.  Ass'n  v.  VVindover,  137  111.  417;  Turner 

Liberty  of  contract  is  not  impaired  v.  Fidelity  &  C.  Co.,  112  Mich.  425; 
by  a  statute  prohibiting  stipulations  Trippe  v.  Provident  Fund  Society,  140 
limiting  actions  to  a  less  period  than  N.  Y.  23;  California  Ins.  Co.  v.  Gracey, 
that  provided  by  statute.  Richardson  15  Col.  70;  Hill  v.  Phoenix  Ins.  Co., 
7'.  Chicago  &  Alton  Ry.  Co.,  149  Mo.  14  Wash.  164;  Phenix  Ins.  Co.  v.  Belt 
311.  In  Indiana  and  Nebraska,  such  Ry.  Co.,  182  111.  33;  Harrison  v.  Hart- 
siipulations  have  been  held  void,  as  ford  F.  Ins.  Co.  (111  Iowa),  80  N.  W. 
contrary  to  public  policy.  Eagle  Ins.  309.  If  the  limitation  as  to  time  for 
Co.  v.  Lafayette  Ins.  Co.,  9  Ind.  443;  suit,  printed  in  the  ordinary  form  of 
Phoenix  Ins.  Co.  v.  Rad  Bila  Hora  primitive  insurance,  is  by  mistake  con- 
Lodge,  41  Neb.  21;  Miller  v.  State  Ins.  tinued  in  a  policy  of  re-insurance,  for 
Co.,  54  Neb.  121.  By  §  2802  of  the  which  that  form  is  used,  the  limita- 
Civil  Code  of  Alabama  (1S96)  "  any  tion,  not  being  applicable  to  re-insur- 
agreement  or  stipulation,  verbal  or  ance,  is  not  binding.  Jackson  v.  St. 
written,  whereby  the  time  for  the  bring-  Paul  F.  &  M.  Ins.  Co.,  99  N.  Y.  124. 
ing  of  any  action  is  limited  to  a  time  A  clause  in  an  insurance  policy,  which 
less  than  that  prescribed  by  law  for  the  makes  it  incontestable  after  the  lapse 
bringing  of  sach  action  is  void."  In  of  a  specified  time,  is  binding  upon  the 
Missouri  a  similar  statute  has  been  insurer,  in  the  absence  of  fraud.  Cle- 
held  constitutional.  Karnes  z.  Ameri-  ment  v.  New  York  L.  Ins.  Co.,  101 
can  F.  Ins.  Co..  144  Mo.  413,  413;  Tenn.  22;  Wright  v.  New  York  L.  Ins. 
Richaidson  7/.  Chicago  &  Alton  R.  Co.,  Co.,  118  N.  Y.  237;  Mass.  Benefit  L. 
[49  Mo.   iii,  322.  Ass'n  7'.  Robinson,  104  Ga.  256;  Mareck 

An  insurer,  who  by  his  own  acts  or  7\  Mutual  Reserve  Fund  L.  Ass'n,  62 
assurances,  or  those  of  his  agent,  in-  Minn.  39;  Simpson  v.  Va.  L.  Ins.  Co., 
duces  the  insured  to  delay  suit  beyond  115  N.  C.  393;  Starck  v.  Union  Central 
such  stipulated  time,  is  estopped  from  L.  Ins.  Co.,  134  Penn.  St  45;  Brady  v. 
relying  on  such  stipulation.  See  Phcx:-  Prudential  Ins.  Co.,  168  id.  645;  Good- 
nix  Ins.  Co.  ?'.  Rad  Bila  Hora  Lodge,  win  v.  Provident  S.  L.  Ass.  Ass'n,  97 
41    Neb.    21;   Home    F.  Ins.  Co.  v.  Fal-  Iowa,  226. 


§§  45-48-]        AVAILABLE  FOR  AND  AGAINST  WHOM.  IO7 

SEC.  45.  "When  Adjustment  is  essential.  —  When  the  policy 
provides  that,  if  the  assured  is  not  satisfied  with  the  adjustment 
of  the  loss  by  the  insurer,  action  must  be  brought  within  a  cer- 
tain time,  the  insurer  is  not  bound  to  bring  his  action  except 
within  that  time  after  the  loss  is  adjusted.1 

SEC.  46.  Effect  of  Appointment  of  Receiver.  —  Where  the 
company  is  dissolved,  and  its  property  placed  in  the  hands  of  a 
receiver,  the  limitation  is  dispensed  with,  as  every  person  insured 
in  the  company  is  treated  as  a  party  to  the  suit  for  the  winding 
up  of  the   company,  although  not  named  as  a  party  thereto.2  {a) 

SEC.  47.  Parol  Contracts.  —  Where  the  contract  tests  in  parol, 
and  no  policy  is  issued,  the  conditions  of  the  policies  of  the  com- 
pany do  not  apply.  Thus,  where  the  assured  took  a  binding 
receipt  from  the  insurer's  agent,  and  paid  the  premium,  condi- 
tioned that  a  policy  should  be  issued  within  twenty-one  days,  or 
the  money  be  refunded,  and  thirty-three  days  thereafter,  no 
policy  having  been  issued,  and  the  premium  not  refunded,  and 
the  company  refused  to  make  one,  it  was  held  that  a  condition 
of  the  policies  issued  by  the  company,  requiring  actions  for  losses 
to  be  brought  within  six  months,  did  not  apply,  for  the  reason 
that  the  action  was  not  founded  on  the  policy,  but  upon  the 
contract  to  insure.3 

SEC.  48.  Commencement  of  Action,  What  is.  —  An  action  is 
deemed  to  be  commenced  when  the  summons  or  writ  is  issued; 
consequently,  if  an  action  is  commenced  within  the  time  limited, 
the  assured's  rights  are  preserved,  even  though,  by  reasonable 
diligence,  the  assured  fails  to   obtain   service   thereof  upon  the 

Kimball  v.  Hamilton  Fire  Ins.  Co.,  8  Bosw.  (N.  Y.)  495.  Where  the  policy  pro- 
vides that  no  action  shall  be  brought  within  twelve  months,  or  any  other  period 
after  the  loss,  an  action  brought  before  the  period  named  has  elapsed  will  be 
dismissed.     Riddlesberger  v.  Hartford  Fire  Ins.  Co.,  7  Wall.  (U.  S.)  386. 

1  Landis  v.  Home  Mat.  Ins.  Co.,  56  Mo.  591. 

5  Pennell  v.  Chandler,  7  Chicago  Leg.  News,  227. 

3  Penley  v.  Beacon  Ass.  Co.,  7  Grant's  Ch.  (Ont.)  130;  Burton  v.  Buckeye  Ins. 
Co.,  26  Ohio  St.  467;   Heisch  v.  Adams,  81  Texas,  94. 

(a)  The    statute  of  limitations   does  time  during  which  an  appeal  from  the 

not  begin  to  run  against  a  receiver  ap-  order  of  allowance    was  pending  does 

pointed  by  the  court,  as  to  his  compen-  not  suspend  the  running  of  the  statute, 

■sation  and  expenses,  until  his  account  Ephraim  v.  Pacific  Bank,  129  Cal.  589. 
has  been  settled  and   allowed,  and  the 


108  STATUTES   OF    LIMITATIONS.  [CHAP.   IV. 

insurer.1  (<?)  In  Vermont,  however,  it  is  held  that,  where  an  action 
is  commenced  within  the  period  limited,  but  for  any  reason  the 
plaintiff  is  compelled  to  become  nonsuit,  or  the  action  fails,  a  new 
action,  commenced  after  the  limitation  has  expired,  will  be 
defeated  by  the  limitation  in  the  policy.2  In  a  New  York  case  3  it 
was  held  that  the  fact  that  within  twelve  months  after  the  loss  an 
injunction  had  been  issued  against  the  policy-holders,  restraining 
them  from  receiving  the  payment  for  losses,  and  aganist  the  com- 
pany from  paying  the  same, was  not  sufficient  to  excuse  the  plaintiff 
from  bringing  the  action  within  the  time  limited.  In  a  case  in 
Ohio,  involving  similar  questions,  the  doctrine  of  the  Vermont  case 
is  repudiated,4  and  it  was  held  that,  where  a  suit  is  commenced 
within  the  time,  but  which  is  dismissed,  or  for  any  cause  is  not 
carried  to  final  judgment,  another  action  may  be  brought,  although 
the  limitation  has  expired.  But,  in  analogy  to  the  rule  adopted 
under  the  statutes  of  limitation,  the  decision  in  the  Vermont 
case  would  seem  to  be  sound. 

SEC.  49.  Delay  induced  by  Defendant.  —  Where  the  insurer  or 
its  agent  does  or  says  anything  to  warrant  the  assured  in  believ- 
ing that  his  claim  will  be  settled,  and  which  induces  him  to  delay 
bringing  an  action  within  the  time  limited,  the  insurer  cannot 
allege  a  breach   in  that  respect.5     But   the  circumstances  must 

1  Peoria  Ins.  Co.  v.  Hall,  T2  Mich.  202.  Upon  the  facts  stated  in  this  case, 
it  appeared  to  have  been  the  fault  of  the  defendant  —  the  absence  of  the  agent  — 
lhat  the  first  summons  was  not  served  and  the  action  commenced  within  twelve 
months;  and  this  was  held  sufficient  to  defeat  the  limitation  or  extend  it  till  the 
service  was  made  under  the  second  summons,  which  was  issued  immediately 
on  the  return  of  the  first. 

'  Wilson  v.  /Etna  Ins.  Co.,  27  Vt.  99. 

3  Wilkinson  v.  First.  National  Fire  Ins.  Co.,  72  N.  Y.  499. 

*  Madison  Ins.  Co.  v.  Fellows,  1  Disney  (Ohio)  217. 

5  Minkev  v.  Burlington  Ins.  Co.,  35  Iowa,  174;  Curtis  v.  Home  Ins.  Co.,  1 
Biss.  (U.  S.)  485;  Brady  v.  Western  Ass.  Co.,  17  U.  C.  (C.  P.)  597;  Ripley  r1. 
Astor  Ins.  Co.,  17  How.  Pr.  (N.  Y.)  444.;  Coursin  v.  Penn.  Ins.  Co.,  46  Penn.  St. 
323;   Home  Ins.  Co.  v.  Myer,  93  111.  271;   Derrick  v.  Lamar  Ins.  Co.,  74.  id.  404. 

(a)  Th'j  general  rule   lhat  a  plaintiff  his  suit.     Thus,  in  a  suit  to  enforce  a 

will  prevail  if   he  has  a  complete  cause  judgment   lien   on    land,  as   the  courts 

of    action    when    he  sues,  is   subject  to  cannot  create  such  a  lien  or  prolong  it 

the  exceptions  that  the  plaintiff  mav  bv  beyond  the  period  fixed  by  law  for  its 

l,i    own  acts  di  vest  himself  of  the  right  enforcement,   the   plaintiff    is   without 

0j   ,,  ,j  ,,,,  and  the  law  mas'  also  deprive  remedy  if  that  period  expires  pending 

I,    n  of    liis    right   even   when   In-  has  a  the   suit.       McAfee   v.    Reynolds,    130 

vat;  i  deman  1  at  the  commencement  of  Ind.  33. 


§§  $0,    5'-j        AVAILABLE  FOR  AND  AGAINST  WHOM.  IO9 

have  been  such  as  fairly  to  induce  delay,  and  as  would  operate 
as  a  fraud  upon  the  part  of  the  insurer  to  set  up  such  delay  in 
avoidance  of  liability.1  Forfeitures  are  not  favored  by  the  law, 
and  slight  evidence  of  a  waiver  will  be  deemed  sufficient.2  If  the 
insurer  adjusts  the  loss,  and  promises  to  pay  it  within  a  specified 
time,  the  period  covered  by  the  promise  is  excluded  from  the 
limitation.3 

Sec.  50.  When  Claim  is  regarded,  as  arising.  —  When  a  policy 
stipulates  that  no  action  shall  be  brought  unless  commenced 
within  twelve  months  after  loss  or  damage  shall  accrue,  and  there 
is  a  provision  in  the  policy  that  the  company  will  pay  in  thirty, 
sixty,  ninety,  or  any  other  number  of  days  after  proofs  of  loss 
have  been  served,  it  has  been  held  in  New  York  that  the  limita- 
tion does  not  attach  until  after  the  period  which  the  company  has 
in  which  to  pay  the  loss  has  expired.4  The  limitation  cannot 
apply  until  a  right  of  action  has  accrued,  and  until  the  period 
which  the  company  has  to  pay  the  loss  in  has  expired,  no  right 
of  action  exists.5  But,  under  a  similar  policy,  it  has  been  held 
in  Illinois  6  that  the  action  must  be  brought  within  the  period 
stipulated,  dating  from  the  time  of  loss,  and  that  an  action 
brought  within  twelve  months  from  the  expiration  of  sixty  days 
after  loss,  but  not  within  twelve  months  from  the  time  of  loss, 
was  too  late. 

SEC.  51.  Waiver  of  Limitation.  —  The  forfeiture  arising  under 
the  limitation  clause  may  be  waived  by  the  company,  and  a  waiver 
may  be  found  from  the  fact  that,  after  the  time  within  which  the 
action  should  have  been  brought,  the  company  acted  and  prom- 
ised as  if  it  did  not  intend  to  rely  upon  the  limitation,7  or  from 
its  conduct  before  the  limitation  has  expired,  which  fairly  induces 
a  confidence  that  the  loss  will  be  paid  without  action,  as  the  fact 

1  Brady  v.  Western  Ass.  Co  ,  supra. 

2  Ripley  v.  Astor  Ins.  Co.,  supra. 

3  See  Black  v.  Winneshiek  Ins.  Co.,  31  Wis.  74;   Killips  v.  Putnam  F.  Ins.  Co., 
2S  Wis.  472;  Ames  v.  New  York  Central  Ins.  Co.,  14  N.  Y.  253. 

4  Mayor  of  New  York  v.  Hamilton  Ins.  Co.,  39  N.  Y.  45;  Mix  v.  Andes  Ins. 
Co.,  9  Hun  (N.  Y.)  397. 

6  Barber  v.  Fire  &  Mar.  Ins.  Co.  of  Wheeling,  16  W.  Va.  658. 
6  Johnson  v.  Humboldt  Ins.  Co.,  91  111.  92. 
1  Coursin  v.  Penn.  Ins.  Co.,  46  Penn.  St.  323. 


IIO  STATUTES   OF    LIMITATION.  [CHAP.   IV. 

that  negotiations  for  a  settlement  are  pending,  and  other  facts 
and  circumstances  calculated  to  induce  delay.1  (a) 

It  is  in  all  cases  essential,  in  order  that  contracts  of  limitation 
may  be  binding  that  thev  shall  be  reasonable,  and  afford  the 
parties  a  reasonable  opportunity  to  enforce  their  claim.  Thus, 
a  stipulation  in  a  bill  of  lading  that  all  claims  for  damages  for 
injuries  to  or  loss  of  property  against  the  carrier  shall  be  adjusted 
before  the  goods  leave  the  office,  or  claim  made  therefor  to  a 
"  trace  agent  "  within  thirty  days  after  shipment,  has  been  held 
unreasonable  and  void.2  The  question  of  reasonableness,  how- 
ever, is  one  largely  dependent  upon  the  circumstances  of  each 
case,  and  the  doctrine  of  the  cases  cited  cannot  be  said  to  be  well 
sustained  as  embodying  an  unqualified  or  absolute  rule  of  law. 
In  determining  the  question  of  reasonableness  when  the  limitation 
dates  from  the  date  of  the  bill  of  lading,  the  length  of  time  ordi- 
narily required  for  transportation  from  the  place  of  shipment  to 
the  place  of  consignment  must  be  regarded,3  and  also  the  peculiar 
difficulties  of  transportation  between  the  points  in  question,  if 
any  such  existed  at  the  time  when  the  contract  was  entered  into ;  * 

1  Mickey  v.  Burlington  Ins.  Co.,  35  Iowa,  174:  Ripley  v.  Astor  Ins.  Co.,  17 
How.  Pr.  (N.  Y.)  444;  Curtis  v.  Home  Ins.  Co.,  1  Biss.  (U.  S.)  485;  Andes  Ins. 
Co.  v.  Fish,  71  III.  620;   Merchants'  Mut.  Ins.  Co.  v.  La  Croix,  45  Tex.  158 

2  Capehart  v.  Seaboard,  etc.,  R.  Co.,  81  N.  C.  438;  Place  v.  Union  Ex.  Co.,  2 
Hilion  (N.  Y.)  19;  Southern  Ex.  Co.  v.  Caperton,  44  Ala.  101,  Where  there  was  a 
stipulation  that "  no  claim  for  deficiency,  damage,  or  detention  would  be  allowed 
unless  made  within  three  days  after  the  delivery  of  the  goods,  nor  for  their  loss 
unless  made  within  seven  days  from  the  time  when  they  should  have  been 
delivered,"  the  condition  was  held  reasonable.  Lewis  v.  Great  Western  Ry. 
Co.,  5  H.  &  N.  867. 

3  Southern  Ex.  Co.  v.  Hunnicutt,  54  Miss.  566 

4  Adams  Exp.  Co.  v.  Reagan,  29  Ind.  21.  In  this  case  the  shipment  having 
been  made  from  Clayton,  Ind.,  to  Savannah,  Ga„  at  a  lime  when  the  country 
was  in  a  very  unsettled  condition,  and  the  difficulties  of  transportation  between 
those  points  very  great,  the  court  held  that  in  view  of  this  condition  of  things 
the  limitation  was  unreasonable,  because  it  put  it  within  the  power  of  the  carrier, 
by  a  delav  which  would  not  perhaps  be  unreasonable,  to  prevent  any  claim  by 
the  shipper  for  loss  or  damage.  See  United  States  Ex.  Co.  v.  Harris.  51  Ind. 
127,  where  such  a  condition  was  upheld  in  a  case  where  none  of  the  objections 
stated  in  the  first-named  case  existed. 

(a)  The    period   limited   by  a  fire-in-  21;     Railway     Conductors'     Ass'n     v. 

Burance  policy  for  bringing  an   action  Loomis,  142   111.  560,  Cascade  F.  &  M. 

against    the    insurer    may    be     waived  Ins.  Co.  v.  Journal   Pub.  Co.,  1  Wash, 

orally.      Hutchinson  v.  Liverpool,  etc.,  St.    452.     See     Edson     v.     Merchants' 

Ins.  Co.,  153  Mass.   143;   Phoenix  Ins.  Mut.  Ins.  Co.,  35  La.  Ann.  353. 
Co.   v.    Rad    P.ila   Hora  Lodge,  41  Neb. 


§  52.]  AVAILABLE  FOR  AND  AGAINST  WHOM.  Ill 

and  if,  in  view  of  all  the  circumstances,  the  condition  is  not 
unreasonable,  it  will  be  upheld  and  given  effect  to.1  "  Such 
conditions,"  says  Pollock,  C.  B.,2  "are  perfectly  reasonable. 
The  law  allows  persons  to  make  their  own  bargains  in  matter  of 
this  sort,"  with  the  single  condition  that  the  stipulation  shall  not 
be  unreasonable. 

SEC.  52.  Against  whom  Statute  may  be  enforced.  State.  —  If 
the  statute  otherwise  expressly  provides,  it  cannot  be  set  up  as  a 
bar  to  any  right  or  claim  of  the  State;3  thus,  it  does  not  apply 

1  Express  Co.  v.  Caldwell,  21  Wall.  (U.  S.)  264;  Weir  v.  Express  Co.,  5  Phila. 
355;  Southern  Ex.  Co.  v.  Hunnicutt,  supra;  also  s.  p.  Wolf  v.  Western  Union. 
Tel.  Co.,  62  Penn.  St.  83,  where  a  stipulation  in  a  contract  by  a  telegraph  com- 
pany, that  it  would  not  be  liable  for  damages  in  any  case  unless  the  claim  was 
made  within  sixty  days  from  the  time  of  sending  the  message,  was  held  rea- 
sonable and  valid. 

'Lewis  v.  Great  Western  Ry,  Co.,  supra. 

3  State  v.  Joiner,  23  Miss.  500;  Harlock  v.  Jackson,  1  Tr.  Con.  (S.  C.)  135; 
McKeehan  v.  Com.,  3  Penn.  Si.  151;  Brinsfield  v.  Carter,  2  Ga.  143;  Wright  v. 
Swan,  6  Port.  (Ala.)  84;  State  v.  Fleming,  19  Mo.  607;  Hardin  v.  Taylor.  4  T. 
B.  Mon.  (Ky.)  5x6;  Wilson  v.  Hudson,  8  Yerg.  (Tenn.)  398;  Josselyn  v.  Stone, 
28  Miss.  753;  Stoughton  v.  Baker,  4  Mass.  526;  Harlock  v.  Jackson,  3  Brev. 
(S.  C.)  254;  Com.  v.  Hutchinson,  10  Penn.  St.  466;  Ware  :•.  Greene,  37  Ala.  494; 
Swearingen  v.  United  States,  n  G.  &  J.  (Md.)  373;  Trotman  v.  May,  33  Penn. 
St.  455;  Bagley  v.  Wallace,  16  S.  <&  R.  (Penn,)  245;  Com.  v.  Johnson,  6  Penn. 
St.  136;  Parks  v.  State,  7  Mo  194;  Parmalee  v.  M'Nutt,  9  Miss  179;  Blodsoe  v. 
Doe,  5  id.  13;  Levasser  v.  Washburn,  n  Gratt.  (Va.)  572;  Des  Moines  County 
v.  Harker,  34  Iowa,  84;  Gore  v.  Lawson,  6  Leigh  (Va.)  258;  Kennedy  v.  Lacon- 
ley,  16  Ala.  239;  Lindsey  v.  Miller,  6  Pet.  (U.  S.)  666;  Wallace  v.  Miner.  6  Ohio, 
366;  State  v.  Arledge,  2  Bailey  (S.  C.)40i;  Com.  v.  Baldwin,  1  Watts  (Penn.)  54; 
Weatherhead  v.  Bledsoe,  2  Overt.  (Tenn.)  352;  Munshower  v.  Patton,  10  S.  <& 
R.  (Penn.)  334:  People  v.  Gilbert,  18  Johns.  (N.  Y.)  227;  State  Treasurer  v. 
Weeks,  4  Vt.  215;  Stoughton  v.  Baker,  5  Mass.  522;  Nimmo  v.  Com.,  4  H.  &  M. 
(Va.)  57.  In  controversies  between  States  as  to  the  settlement  of  their  boundaries, 
the  statute  of  limitations  is  not  applied  in  all  ils  rigor,  nor  will  title  by  prescrip- 
tion be  acquired  as  readily.  Rhode  Island  v.  Massachusetts,  15  Pet.  (U.  S.)- 
233.  In  England,  formeily  the  rule  was  that,  except  where  it  is  expressly 
named,  the  crown  is  not  affected  by  the  statutes  of  limitation,  and  the  old  com- 
mon-law maxim,  nullum  tempus  occurrit  regi,  prevailed.  And  the  same  is  the 
rule  in  this  country  with  regard  to  the  rights  of  the  government,  except  in  two 
or  three  Stales  where  the  statute  otherwise  provides.  The  first  attempt  to  limit 
the  rights  of  the  crown  in  England  was  by  Stat.  21  James  I.  c.  5,  entitled  "An 
Act  for  the  general  quiet  of  the  subject  against  all  pretenses  of  concealment 
whatsoever;  "  but  as  that  act  only  gave  protection  where  there  had  bzzn  pos- 
session adverse  to  the  crown  for  sixty  years  previously  to  the  passing  of  the  act, 
it  became,  of  course,  by  efflux  of  time,  continually  less  useful.  It  has  been 
doubted   whether  the  Stat.  3  &  4  Wm.  IV.  c.  27,  may  not  apply  to  the  crown, 


112  STATUTES   OF    LIMITATION.  [CHAP.   IV. 

to  actions  in  favor  of  the  State  against  sureties  upon  bonds  given 

and  the  nullum  tempus  act  apply  only  to  the  private  property  of  the  crown.  But 
see  contra,  Alty.-Gen.  v.  Magdalen  College,  18  Beav.  246.  A  more  effectual 
remedy  was  provided  by  the  nullum  tempus  act,  passed  in  the  reign  of  George 
the  Third.  9  Geo.  III.  c.  16.  This  act  is  amended  by  the  Stat.  24  &  25  Vict.  c. 
•62.  See  Appendix.  By  this  the  right  of  the  crown  to  recover  any  manors, 
lands,  tenements,  rents,  tithes,  or  oiher  hereditaments  other  than  liberties  and 
franchises,  is  barred  after  the  lapse  of  sixty  years  from  the  commencement  of 
such  right.  And  there  are  provisions  for  the  case  of  reversions  and  other 
future  interests  belonging  to  ihe  crown.  Some  lime  subsequently  a  very  similar 
act  was  passed  for  Ireland.  48  Geo.  III.  c.  47.  By  later  special  acts,  7  &  8 
Vict.  c.  105,  23  &  24  Vict.  c.  53,  and  24  &  25  Vict.  c.  62,  provisions  similar  to 
those  contained  in  the  nullum  tempus  act  have  been  made  in  regard  to  the 
Duchy  of  Cornwall.  Il  will  be  observed  that  ihe  words  in  Stat.  9  Geo.  III.  c. 
16,  are  very  general;  but  it  has  been  doubted  whether,  and  to  what  extent, 
they  include  advowsons,  chattels  real,  and  mines,  and  the  exact  nature  of 
liberties  and  franchises  there  referred  to.  With  regard  to  crown  advowsons,  it 
has  been  argued  that  they  are  within  the  nullum  tempus  act,  as  being  included 
in  the  term  "  all  hereditaments  "  contained  in  it;  and  also  because  in  the  ninth 
section  of  the  same  act  there  is  an  express  reservation  of  the  crown  rights  in 
the  advowsons  of  the  Savoy.  On  the  other  hand,  it  has  been  contended  that 
the  act  in  question  varied  the  crown  rights  only  when  the  subject  of  the  claim 
had  not  been  "  put  in  charge,"  a  mode  of  expression  not  applicable  to  advow- 
sons. Gibson  v.  Clarke,  1  Jac.  &  W.  159.  In  the  act  of  9  Geo.  III.  there  were 
certain  exceptions  in  favor  of  the  crown  in  cases  where  the  title  of  the  crown 
had  been  acknowledged,  by  reason  that  the  manor  or  other  hereditaments  had 
been  in  charge  to  the  crown  or  stood  insuper  of  record,  and  also  where  as  to  a 
different  part  of  the  manor  or  other  hereditaments  in  question  the  crown's  right 
had  been  preserved.  These  exceptions  are  now  abolished,  and  provision  is 
made  by  the  same  act  that,  where  the  crown  has  made  a  lease  of  any  manor  or 
other  hereditament,  the  right  of  the  crown  against  any  person  whose  possession 
commences  subsequently  to  the  lease  shall  not  be  considered  to  accrue  till  the 
expiration  of  the  lease.  24  &  25  Vict.  c.  62,  §£  1,  3.  It  has  been  said  that  the 
remedy  only  of  the  crown  is  barred  by  the  nullum  tempus  act,  and  that  the  title 
is  not  transferred;  and  words  of  Lord  Ellenborough,  in  a  case  of  Goodtitle  v. 
Baldwin,  11  East,  488,  have  been  supposed  (but  perhaps  without  sufficient  rea- 
son) to  support  this  view.  9  Geo.  III.  c.  16.  The  privilege  of  the  crown  has 
been  extended  to  a  lessee  of  the  crown  out  of  possession  more  than  twenty 
vears.  Doe  v.  Roberts,  13  M.  &  W.  520.  But  see  Lee  v.  Norris,  Cro.  Eliz.  331. 
Although  the  government  is  not  affected  prejudicially  by  any  particular  statute 
of  limitation,  it  may  yet  take  advantage  of  it.  ri  Coke,  68  b.  But  see  Rustom- 
jee  v.  The  Queen,  L.  R.  r  Q.  B.  D.  487.  Independently  of  the  statute,  a  grant 
from  the  government  may  be  presumed  where  the  grant  would  not  have  been 
in  excess  of  the  prerogative.  See  Goodtitle  v.  Baldwin,  n  East,  488;  Mayor  of 
Hill  v.  Horner,  1  Cowp.  102.  No  grant  can  be  presumed  to  have  been  made 
by  the  government  against  the  express  provisions  of  any  statute.  Goodtitle  v. 
Baldwin,  ir  East,  488;  Devine  v.  Wilson,  10  Moore,  502.  In  all  cases  where 
not  specially  named  the  government  is  not  affected  by  statutes  of  limitation, 
consequently  there  is  no  limit  to  the  time  for  the  recovery  of  government  debts, 


$  52-]  AVAILABLE  FOR  AND  AGAINST  WHOM.  II3 

for  the  faithful  discharge  of  the  duties  of  public  offiers,1  or  other 
official  bonds ; 2  (<?)  nor  to  actions  to  recover  debts  due  to  the 
State,3  or  to  recover  lands  belonging  to  it;4  nor,  indeed,  to  any 
class  of  claims  in  favor  of  the  State,  unless  the  statute  expressly 
so  provides.  But  this  rule  only  applies  to  claims  in  which  the 
State  is  the  real  party,  and  has  no  application  in  cases  where, 
although  a  nominal  party  to  the  record,  it  has  no  real  interest  in 
the  litigation,  but  its  name  is  used  to  enforce  a  right  which  inures 
solely  to  the  benefit  of  an  individual  or  a  corporation,  municipal 
or  otherwise.5  (b)     Laches  not  being  imputable  to  the  State,  no 

Though  between  the  State  and  its  immediate  debtor  the  statutes  have  no 
application,  The  King  v.  Marrall,  6  Price,  24,  yet  when  it  takes  as  assignee  the 
rights  of  a  subject,  through  a  forfeiture  or  otherwise,  there  is  more  difficulty  in 
the  question.  It  seems  that  where  it  has  a  derivative  title  it  stands  in  the  same 
position  as  its  principal.  Lambert  v.  Taylor,  4  B.  &  C.  13S;  United  Slates  v. 
Kurford,  3  Pet.  (U.  S.)  30  Thus,  it  has  been  considered  that  where  the  debt  to 
the  principal  is  already  barred,  the  transfer  to  the  State  will  not  revive  it;  but 
it  time  is  running  against  the  principal  it  is  held  in  England  that  time  will 
cease  to  run  on  the  debt  becoming  vested  in  the  government,  Lambert  v.  Taylor, 
ante;  but  in  this  country  the  rule  is  otherwise,  and  if  the  statute  has  com- 
menced to  run  upon  the  debt  belore  its  assignment  to  the  State,  it  is  held  that 
its  operation  is  not  stopped  by  such  transfer.  United  States  v.  White,  2  Hill 
(N.  Y.)  59.  A  debt  due  to  a  bank  owned  and  carried  on  by  the  State  alone  is 
not  barred  by  the  statute.  State  Bank  v.  Brown,  2  111.  106.  But  where  the 
government  becomes  associated  with  an  individual  or  corporation  in  an  enter- 
prise, the  government  to  that  extent  divests  itself  of  the  prerogatives  of 
sovereignty  and  assumes  the  character  of  a  private  citizen.  United  States 
Bank  v.  McKenzie,  2  Brock.  (U.  S.)  393. 

1  Ware  v.  Greene,  37  Ala.  494. 

a  State  v.  Pratt,  8  Mo.  286. 

3  State  Bank  v.  Brown,  2  111.  106. 

4  Thirty  years'  possession  will  not  give  title  against  the  State.  Walls  v. 
McGee,  4  Harr.  (Del.)  10S.  The  statute  does  not  run  against  a  tenant  in  pos- 
session while  the  title  is  in  the  State.  Smead  v.  Williams,  6  Ga.  158;  City  of 
Alton  v.  Illinois  Trans.,  etc.,  Co.,  12  111.  38.  Possession  of  lands  the  title  of 
which  is  in  the  State,  even  if  adverse  and  exclusive  in  its  nature,  does  not 
operate  to  disseise  or  limit  the  State,  or  confer  any  title  to  the  land.  Cary  v. 
Whitney,  46  Me.  516. 

'Miller  v.  State,  38  Ala.  600;  U.  S.  v.  Nashville,  C.  &  St.  L.  R.  R.  Co.,  118 
U.  S.  125;  U.  S.  v.  Des  Moines  Nav.  Co.,  142  U.  S.  510.     Thus,  where  a  person 

(a)  That  an  official  bond  is  simply  a  19  Wash.  418;  Davis  v.  Clark,  58  Kan- 
collateral  security  for  performing   the  sas,  454. 

officer's  duty,  and  when  suit  is  barred  (/>)  So,  whenever  the  general  gove.rn- 

for  breach  of   his   duty,  action   is  also  ment    proceeds    to    set    aside  a  patent 

barred  on  the  bond,  see  State  v.  Blake,  granted    by  it,  not   for   the   sake  of  es- 

2   Ohio  St.  147;  State  v.   Kelly,    32  id.  tablishing  its  own  right  to  the  property, 

421,  431;  Spokane  County  v.  Prescotl,  but  in  the  interest  of  some  person  who 
[stats,  of  lim.  —  7] 


114  STATUTES   OF   LIMITATION.  [CHAP.   IV. 

length  of  possession  of  its  lands  will  bar  its  title  thereto.  In 
Massachusetts,1  where  a  question  arose  on  an  ancient  grant,  made 
in  1634,  containing  an  implied  limitation,  the  defendant  insisted 
that,  having  been  so  long  possessed  of  the  estate,  the  State  had 
no  right  to  interfere,  and  could  not  secure  the  benefit  of  the  lim- 
itation by  any  legal  remedy.  "The  limitation,"  said  Parsons, 
C.  J.,  "  is  not  extinguished  by  any  inattention  or  neglect  in  com- 
pelling the  owner  to  comply  with  it,  for  no  laches  is  to  be  imputed 
to  the  government,  and  against  it  no  time  runs  so  as  to  bar  its 
rights."  But  it  seems  that  a  grant  or  charter  from  the  govern- 
ment, which  ought  to  be  by  matter  of  record,  may,  under  certain 
circumstances,  be  presumed,  though  within  the  time  of  legal 
memory.  Thus,  in  an  English  case,  the  authority  of  which  has 
not  been  questioned,  it  was  held  that  a  presumption  of  such  a 
grant,  founded  upon  three  hundred  and  fifty  years  of  uninter- 
rupted possession,  was  warranted.2  The  same  rule  applies  to  the 
general  government,  and  State  statutes  cannot  be  interposed  to 
defeat  its  rights,  except  where  they  are  sought  to  be  enforced  in 

seeks  to  enforce  his  private  rights  by  a  mandamus  in  the  name  of  the  Stale,  it 
has  been  held  that  the  fact  that  the  right  sought  to  be  enforced  was  barred  by 
the  statute  was  a  good  defense.  Moody  v.  Fleming,  4  Ga.  115.  In  New  Hamp- 
shire v.  Louisiana,  108  U.  S.  76,  the  court  looked  behind  and  through  the 
nominal  parlies  of  the  record  to  ascertain  who  were  the  real  parties  to  the  suii. 
And  see  U.  S  v.  Beebe,  127  U.  S.  121;  Re  Ayers,  123  U.  S.  492.  In  Gates  v. 
State  of  New  York,  128  N.  Y.  221,  it  was  held  that  the  State  in  submitting 
itself  to  the  jurisdiction  of  a  tiibunal,  with  respect  to  claims  against  it  for  dam- 
ages sustained  by  reason  of  any  accident  occurring  on  its  canals,  or  connected 
with  their  care  and  management,  subjected  to  the  determination  of  its  liability 
to  the  government  of  those  rules  which  usually  obtain  in  similar  cases.  In 
Folts  v.  State  of  New  York,  118  N.  Y.  406,  under  the  provisions  of  the  act  of 
1870,  limiting  the  time  for  filing  claims  against  the  State  to  two  years  from  the 
lime  the  damages  accrued,  when  a  claim  is  presented  and  proved  for  continu- 
ous damages,  part  accruing  within  the  two  years,  the  claimant  is  entitled  to 
recover  the  damages  so  accruing;  it  is  only  such  damages  as  accrued  before 
that  time  which  are  barred  by  the  statute. 

1  Stoughton  v.  Raker,  4  Mass.  526. 

'  Mayor  of  Hull  v.  Horner,  1  Cowp.  102. 

has   an   equitable  claim  thereto,  or  to  U.  S.  662;  United  States  v.  Bell  Tele- 

whom    the   government  owes  the  duty  phone   Co.,  167  U.  S.    222.   265;   Moran 

of    protecting   his   interests,   it   is  sub-  v.  Horsky,  178  U.  S.  205,  213.    A  statute 

jectetl    to   the  same   defense  of  laches,  which  applies  the  statute  of  limitations 

limitation     and     want   of    equity    that  to  the  government  does  not  also  apply 

would  attach  to  a  like  suit   bv  an  indi-  to  it   the  equitable  doctrine  of  laches, 

■vidual.      Curtner  v.  United  States,  149  State  v.  Sponaugle,  45  W.  Va.  415,  431. 


§  52.]  AVAILABLE  FOR  AND  AGAINST  WHOM.  115 

the  tribunals  of  the   State,1-  and   the  defense  of  laches  or  stale 
claim  cannot  be  set  up  against  the  general  government.2 

As  to  the  general  and  State  government,  the  old  common-law 
maxim  nullum  tempus  occurrit  regi  applies  with  full  power, 
unless,  as  previously  stated,  the  statute  otherwise  expressly  pro- 
vides.3 (a)  But  this  rule  only  applies  when  the  general  govern- 
ment is  the  sole  and  real  party  in  interest.  Thus,  it  was  held 
that  the  Bank  of  the  United  States  was  within  the  operation  of 
these  statutes,  although  the  government  was  a  stockholder 
therein.4     It  makes  no  difference  what  the  nature  or  character  of 

1  United  States  v.  Williams,  5  McLean  (U.  S.)  183;  Swearingen  v.  United 
States,  11  G.  &  J.  (Md.)  373;  Redfield  v.  Parks,  132  U.  S.  239;  United  States  v. 
Nashville,  etc.,  R.  R.  Co.,  118  U.  S.  81.  In  United  States  v.  Hoar,  2  Mason 
(U.  S.)  312,  where  an  action  for  money  had  and  received  was  brought  by  the 
United  Slates  to  which  the  defendant  set  up  the  statute  of  limitations  of  the 
State,  Story,  ].,  in  passing  upon  the  question  as  to  whether  these  statutes 
barred  the  government,  said:  "  It  is  not  to  be  presumed  that  a  State  legisla- 
ture mean  to  transcend  their  constitutional  power,  and  theretore,  however  gen- 
eral the  words  may  be,  they  are  always  restrained  to  persons  and  things  over 
which  the  jurisdiction  of  the  State  may  be  rightfully  exerted.  And  if  a  con- 
struction could  ever  be  justified  which  could  include  the  United  States  at  the 
same  time  it  excluded  the  State,  it  cannot  be  presumed  that  Congress  intended 
to  sanction  a  usurpation  of  power  by  a  State  to  regulate  and  control  the  rights 
of  the  United  States."  See  United  States  v.  Buford,  3  Pet.  (U.  S.)  12;  United 
States  v.  Davis,  3  Pet.  (U.  S.)483;  Smith  v.  United  States,  5  id.  293;  Burgess 
v.  Gray,  16  How.  (U.  S.)48.  The  United  States  suing  in  the  Circuit  Court  is  noi 
barred  by  a  State  statute.     United  States  v.  Hoar,  2  Mason  (U.  S.)  311. 

*  United  Stales  v.  Dallas  Military  Road  Co.,  140  U.  S.  599;  United  States  v. 
Insley,  130  id.  263;  Steele  v.  United  States,  113  id.  128;  United  States  v.  Kil- 
patrick,  9  Wheat.  (U.  S.)  720;  United  States  v.  Nichols,  12  id.  505;  Gaussen  v. 
United  States,  97  U.  S.  584;  Dox  v.  Postmaster-Gen'l,  1  Pet.  (U.  S.)  318;  Lindsey 
v.  Miller,  6  id.  666;  Gibson  v.  Chouteau,  13  Wall.  (U.  S.)  92. 

3  McNamee  v.  United  States,  11  Ark.  148;  Cram  v.  Reeder,  21  Mich.  24.  In 
Lindsey  v.  Miller,  6  Pet.  (U.  S.)  666,  this  maxim  is  vindicated  upon  the  ground 
that  "  the  public  domain  would  soon  be  appropriated  by  adventurers.  Indeed, 
it  would  be  utterly  impracticable,  by  the  use  of  any  power  within  the  reach  of 
the  government  to  prevent  this  result." 

*  United  States  Bank  v.  McKenzie,  2  Brock.  (U.  S.)  393.  But  see  Glover  v. 
Wilson,  6  Penn.  St.  290,  in  which  it  was  held  that,  where  the  government  and 
an  individual  are  jointly  interested  in  a  claim,  the  statute  is  not  a  bar  to  either. 
In  United  States  v.  Nashville,  etc.,  Ry.  Co.,  118  U.  S.  83,  Gray,  J.,  says:  "  It 
is  settled  beyond  doubt  or  controversy  —  upon  the  foundation  of  the  great 
principle  of  public  policy,  applicable  to  all  governments  alike,  which  forbids 
that  the  public  interests  should  be  prejudiced  by  the  negligence  of  the  officers 

(a)  See  Northwestern  &  P.  H.  Bank  Schneider  v.  Hutchinson  (35  Oregon), 
v.  State  (18  Wash.),  42  L.  R.  A.  1,  67,  n. ;     76  Am.  St.  Rep.  474,  and  n. 


Il6  STATUTES   OF   LIMITATION.  [CHAP.   IV. 

the  claim  is,  as  the  statute  does  not  apply  to  any  claim  in  its 
favor.  But  a  distinction  arises  where  it  holds  as  an  assignee  of 
an  individual,  and  the  statute  has  commenced  to  run  before  the 
claim  was  assigned.  Thus,  where  a  note  was  assigned  to  the  gov- 
ernment and  the  statute  had  begun  to  run  before  it  was  assigned, 
it  was  held  that  the  claim  was  subject  to  the  statutory  bar.  But1 
while  the  rule  is  as  stated  in  reference  to  the  government  itself,  it 
has  no  application  to  suits  for  or  against  individuals  acting  for,  or 
under  the  authority  of,  the  government,  and  as  to  them  the 
statute  runs  for  or  against  such  claims  the  same  as  it  does  against 
other.  Thus,  it  bars  an  action  against  a  Federal  or  State  officer 
for  nonfeasance  in  office;2  so  a  State  statute  has  in  some  cases 
been  held  to  bar  an  action  for  an  infrigement  of  a  patent  brought 
in  such  State;3  but  the  great  weight  of  authority  is  opposed  to 
this  doctrine,  and,  generally,  it  may  be  said  that  the  statute  runs 

or  agents  to  whose  care  they  are  confided  —  that  the  United  States,  asserting 
rights  vested  in  it  as  a  sovereign  government,  is  not  bound  by  any  statute  of 
limitations,  unless  Congress  has  clearly  manifested  its  intention  that  it  should 
be  so  bound.  Lindsey  v.  Miller,  6  Pet.  666;  United  States  v.  Knight,  14  Pet. 
301;  Gibson  v.  Chouteau,  13  Wall.  92;  United  States  v.  Thompson,  98  U.  S.  486; 
Fink  v.  O'Neil,  106  U.  S.  272.  The  nature  and  legal  effect  of  any  contract  are 
not  changed  by  its  transfer  to  the  United  States.  When  the  United  States, 
through  its  lawfully  authorized  agents,  becomes  the  owner  of  negotiable  paper, 
it  is  obliged  to  give  the  same  notice  to  charge  an  indorser  as  would  be  required 
of  a  private  holder.  United  States  v.  Barker,  4  Wash.  (C.  C.)  464,  and  12  Wheat. 
559;  United  States  v.  Bank  of  Metropolis,  15  Pet.  377;  Cooke  v.  United  States, 
<)i  U.  S.  3S9.  It  takes  such  paper,  subject  to  all  the  equities  existing  against 
the  person  from  whom  it  purchases  at  the  time  when  it  acquires  its  title,  and 
cannot  therefore  maintain  an  action  upon  it,  if  at  that  time  all  right  of  action  of 
that  person  was  extinguished,  or  was  barred  by  the  statute  of  limitations. 
United  States  v.  Buford,  3  Pet.  12;  King  v.  Morrall,  6  Price,  24.  But  if  the  bar 
of  the  statute  is  not  complete  when  the  United  States  becomes  the  owner  and 
holder  of  the  paper,  il  appears  to  us,  notwithstanding  the  dictum  of  Cowen,  J., 
in  United  States  v.  White,  2  Hill  (N.  Y.)  59,  61,  impossible  to  hold  that  the 
statute  could  afterwards  run  against  the  United  States.  Lambert  v.  Taylor,  4 
I'..  &  C.  13S;  s.  c,  6  D.  &  R.  188.  See  Van  Brocklin  v.  Tennessee,  117  U.  S. 
151.  This  case  does  not  present  the  question,  what  effect  the  statute  of  limita- 
tions may  have  in  an  action  on  a  contract  in  which  the  United  States  has 
nothing  but  the  formal  title,  and  the  whole  interest  belongs  to  others.  See 
Maryland  v.  Baldwin,  112  U.  S.  490;   Miller  v.  State,  38  Ala.  600. 

1  United  States  v.  White,  2   Hill  (N.  Y.)  59. 

,;  M'Cluny  v.  Silliman,  3  Pet.  (U.  S.)  270;  Bank  of  Hartford  v.  Waterman,  26 
Conn.  324. 

:  Parker  v.  Hawk,  2  Fisher's  Pat,  Cas.  58.  But  see  Collins  v.  Peebles,  id. 
541;    Parker  v.  llallock,  id.  543,  n.,  where  a  contrary  doctrine  was  held. 


§  52.]  AVAILABLE  FOR  AND  AGAINST  WHOM.  I  I  7 

against  all  claims  except  those  which  arc  sought  to  be  enforced 
by  the  government  in  its  name  and  on  its  behalf,1  and  that  a 
grant  to  an  individual  or  corporation,  or  a  privilege  to  exercise  a 
particular  right  exclusively,  does  not  operate  as  a  protection 
against  this  statutory  bar,  in  a  case  to  which  the  statute  is  other- 
wise applicable.  The  goverment,  although  not  precluded  by  the 
statute,  may  nevertheless  avail  itself  thereof  in  suits  against  it, 
where  there  is  a  statute  authorizing  individuals  to  bring  suits 
against  it.2  This  was  held  at  an  early  day,3  but  the  justice  of 
the  rule  is  not  apparent.  Indeed,  there  would  seem  to  be  no 
good  foundation  for  the  rule,  either  in  principle,  reason,  or  sound 
morality.4  In  some  of  the  States  the  statute  is,  in  terms,  made 
applicable  against  the  State,  either  wholly  or  in  special  cases.5 
Thus,  in  Nevada  it  is  expressly  provided  that  the  State  "  will 
not  sue  any  person  for,  or  in  respect  to,  any  real  property,  or  the 
issues  or  profits  thereof,  by  reason  of  the  right  or  title  of  the 
State  to  the  same,  unless:  First,  such  right  or  title  shall  have 
accrued  within  ten  years  before  any  action  or  other  proceeding 
for  the  same;  or  unless,  second,  the  State,  or  those  from  whom 
it  claims,  shall  have  received  the  rents  and  profits  of  such  real 
property,  or  some  part  thereof,  within  the  space  of  ten  years;  " 
and  the  statute  is  made  applicable  in  all  actions  for  the  State  the 
same  as  against  individuals.  In  Minnesota6  and  Oregon,  the 
statute  is  expressly  applied  to  the  State  the  same  as  to  private 
individuals;7  so  also  in  California8  and  Michigan.9  In  New 
Jersey,  a  provision  relative  to  actions  relative  to  lands,  quite 
similar  to  that  in  the  Nevada  statute,  exists,  except  that  the 
period  of  limitation  is  twenty  years.10  In  New  York,  the  statute 
in  all  cases  is  applicable  to  actions  brought  in  the  name  of  the 

I  Miller  v.  State,  38  Ala.  600. 

5  Baxter  v.  State,  10  Wis.  454. 
3 11  Coke,  68  b. 

*  Rustomjee  v.  The  Queen,  1  Q.  B.  D.  487. 

6  Nevada  Compiled  Laws  (by  Cutting,  1900),  §§  3705,  3723.  In  Nevada  it  is 
held  thai  the  statule  of  limitations  may  be  set  up  to  defeat  an  action  in  the 
name  of  the  State  to  recover  delinquent  taxes.  State  v.  YelJow  Jacket  Silver 
Mining  Co.,  14  Nev.  220. 

*2  Minnesota  Stats.  (1894),  §  5142. 

I I  Oregon  Laws  (by  Hill,  1892),  p.  138,  §  13. 
8  California  Code  of  Civil  Proc,  §  345. 

•3  Michigan  Compiled  Laws  (1897),  p.  2981,  §  20. 
10  2  New  Jersey  Gen.  Stats.  (1895),  p.  1978,  §  27. 


Il8  STATUTES   OF   LIMITATION.  [CHAP.   IV. 

people  of  the  State,  or  for  their  benefit,  the  same  as  to  indi- 
viduals;1 and  such  also  is  the  case  in  Massachusetts2  and  Ver- 
mont.3 In  Maine,  the  statute  applies  to  the  State  as  to  all  real 
or  mixed  actions,  for  the  recovery  of  lands,  but  not  in  other  mat- 
ters.* In  most  of  the  other  States  the  maxim  nullum  tempus,  etc., 
applies,  and  in  all  the  States  where  the  statutory  bar  is  only 
applied  in  special  instances  the  maxim  is  applied  as  to  all  other 
matters. 

Sec.  53.  Municipal  Corporations,  Counties,  &c.,  within  the 
Statute.  —  The  maxim  nullum  tempus  occurrit  regi  only  applies  in 
favor  of  the  sovereign  power,  and  has  no  application  to  municipal 
corporations  deriving  their  powers  from  the  sovereign,  although 
their  powers  in  a  limited  sense  are  governmental.  Thus  the 
statute  runs  for  or  against  towns  and  cities,5  and  also  for  or 
against  counties,6  in  the  same  manner  as  it  does  for  and  against 
individuals  (a).  In  some  of  the  States  the  statute  is  in  terms 
extended  to  towns,  cities,  and  counties;  but  independent  of 
such  .provision  the  rule  is  as  above  stated. 

1  New  York  Code  (Bliss's,  4th  ed.),  §  389. 
8  Mass.  Pub.  Stats.  (1882),  ch.  195,  §  6. 

3  Vermont  Stats.  (1894),  §  1220. 

4  Maine  Rev.  Stats.  (1883),  ch.  105.  §  II. 

6  Cincinnati  v.  Evans,  5  Ohio  St.  594;  Lane  v.  Kennedy,  13  id.  42;  Cincinnati 
v.  First  Presbyterian  Church,  8  id.  298;  Conyngham  School  Dist.  v.  Columbia 
Co.  (Penn.),  6  Leg.  Gaz.  26;  School  Directors  v.  Georges,  50  Mo.  194;  Kenne- 
bunk  v.  Smith,  21  Me.  445;  Gibson  v.  Chouteau,  13  Wall.  (U.  S.)q2;  Alton  v. 
Illinois  Trans.,  etc.,  Co.,  12  111.  38. 

*  County  of  St.  Charles  v.  Powell,  22  Mo.  525;  Evans  v.  Erie  County.  66  Penn. 
St.  222;  Baker  v.  Johnson  Co.,  33  Iowa,  151;  Armstrong  v.  Dalton,  4  Dev, 
(N.  C.)  568;  County  of  Lancaster  v.  Brinthall,  29  Penn.  St.  38. 

(a)  See  Boone  County  v.  Burlington  taxes  collected  by  a  city  and  held  by  it 

&  Mo.  River  R.  Co.,  139  U.  S.  684,  693;  in  trust,  are  not  affected  by  the  statute 

Hammond    v.    Shepard,    186    111.    235;  of  limitations.     New  Orleans  v.  Fisher, 

Araphoe  Village  v.  Albee,  (24  Neb.  242)  180  U.  S.  185. 
8   Am.    St.    Rep.  202,    and   n.     School 


■3  54-] 


COMPUTATION   OF   TIME. 


II9 


CHAPTER  V. 


Computation  of  Time. 


Sec.  54.  "  From  "  and  "  after. 
55.  Meaning       of        the 
"  Month." 


Sec.  56.  When  Act  is  to  be  done  "  by  " 
Word  a  Certain  Day. 

57.  Year. 


Sec.  54.  "  Prom  "  and  "  after."  —  In  calculating  the  periods 
fixed  by  the  different  statutes  of  limitation,  which  date  for  the 
most  part  from  the  time  of  the  accrual  of  the  cause  of  action,  a 
difficulty  has  sometimes  arisen  whether  the  day  of  such  accrual 
ought  to  be  excluded  or  included  in  the  computation,  (a)  Gen- 
erally, inasmuch  as  fractions  of  a  day  are  not  recognized  in  law,  the 
day  must  be  either  included  or  excluded  in  entirety;1  but 
instances  frequently  occur,  especially  as  to  the  priority  of  claims, 
which  depend  upon  the  order  of  events  occurring  on  the  same 
day,  and  then  the  general  rule  as  to  the  indivisibility  of  a  day  is 


'Tufts  v.  Carradine,  3  La.  Ann.  430;  Price  v.  Tucker,  5  id.  514;  Jones  v. 
Planters'  Bank,  5  Humph.  (Tenn.)  619;  Portland  Bank  v.  Maine  Bank,  ir  Mass. 
204;  Re  Welman,  20  Vt.  653.  The  old  fiction  that  there  is  no  fraction  of  a  day 
no  longer  prevails  where  it  becomes  essential  for  the  purposes  of  justice  to 
ascertain  the  exact  hour  or  minute.     Pearpoinl  v.  Graham,  4  Wash.  (U.  S.)  232. 


(a)  The  words  "  from,"  "  after," 
"  until,"  "  between,"  exclude  the  day 
to  which  reference  is  made;  but  it  is  a 
prima  facie  rule  of  construction  only, 
which  yields  to  the  manifest  intent 
of  the  statute  or  contract.  Bemis 
v.  Leonard,  118  Mass.  502;  Kendall  v. 
Kingsley,  120  Mass.  94;  Seward  v. 
Hayden,  150  Mass.  158;  Walker  v.  John 
Hancock  L.  Ins.  Co.,  167  Mass.  188: 
Page  v.  Weymouth,  47  Me.  238,  Sim- 
mons v.  Jacobs,  52  Me.  147;  Marvin  v. 
Marvin,  75  N.  Y.  240;  Clarke  v.  New 
York,  in  N.  Y.  623;  Buchanan  v.  Whit- 
man, 151  N.  Y.  253;  Thomson  v.  Conn. 
Mut.  L.  Ins.  Co.,  4  Penn.  Dist.  Rep. 
382;  Com.  v.  Wood,  5  id.  179;  Halbert 
v.  San  Saba  Springs  Land  Ass'n  (89 
Tex.  230),  49  Lawyers'  Reps.  Ann.  193, 
and  n.;  Conway  v.  Smith  Mercantile 
"Co.  (6  Wyo.  327),  id.  201,  212,  n.    When 


a  certain  number  of  days,  weeks  or 
months  are  specified  by  statute,  the 
statutory  number  is  computed  by  add- 
ing it  to  the  ascertained  number  of  the 
day  of  the  month;  of  two  extreme  days, 
the  one  is  to  be  included  and  the  other 
excluded  in  the  reckoning;  if  the  speci- 
fied number  of  days  are  definite  and 
Sunday  is  not  mentioned,  the  days  run 
consecutively,  including  Sunday,  and 
if  an  act  is  required  to  be  done  on  a 
date  which  falls  on  Sunday,  it  is  to  be 
done  on  the  next  day.  Cressey  v. 
Parks,  75  Me.  387;  Sands  v.  Lyon,  18 
Conn.,  18,  26,  31;  John  v.  Hock,  4  Del. 
Co.  Ct.  109;  Crozier  v.  Allen,  117  Mich. 
171;  Coleman  v.  Keenan,  7b  111.  App. 
315;  Monroe  Cattle  Co.  v.  Becker,  147 
U.  S.  47;  Hermann  v.  United  States, 
66  Fed.  Rep.  721. 


120  STATUTES    OF    LIMITATION.  [CHAP.   V. 

departed  from.1  (a)  As  the  law  on  this  point  is  neither  satisfac- 
tory nor  certain,  and  as  the  question  is  one  not  belonging  pecu- 
liarly to  the  subject  of  this  work,  it  will  suffice  here  to  discuss  the 
matter  very  briefly.  In  a  carefully  considered  English  case2  it 
was  held  that,  and  the  result  of  the  decision  in  that  case  is,  that 
there  is  no  settled  general  rule,  and  that  the  day  of  the  event  in 
a  given  case  must  be  excluded  or  included,  as  may  be  most  con- 
ducive to  the  beneficial  operation  of  the  act ;  but  that  where  the 
act  from  which  time  is  to  begin  to  run  is  one  to  which  the  party 
who  seeks  to  extend  that  period  is  privy,  there  is  a  presumption 
in    favor  of   including  the  day  of  such  act  or  period,  (b)      In  a 

1  Cincinnati  Bank  v.  Burkhardt,  ioo  U.  S.  6S6.  Whenever  the  whole  day  and 
every  moment  of  it  can  be  counted,  it  should  be;  whenever,  if  it  were  counted 
the  party  would  in  fact  have  but  a  fractional  part  of  it,  then  it  should  not  be 
counted.  Phelan  v.  Douglass,  n  How.  Pr.  (N.  Y.)  193.  The  whole  of  a  term 
is  considered  as  one  day,  and  by  a  legal  fiction,  the  time  between  the  submis. 
sion  and  decision  of  a  cause  is  considered  as  but  one  day.  Cunningham  v. 
Ashley,  13  Ark.  653.  In  estimating  the  amount  of  damages  caused  by  obstruct- 
ing a  public  way,  the  jury  may  consider  fractions  of  a  day;  Ferris  v.  Ward,  9 
111.  499;  and  an  act  which  is  to  be  done  in  the  first  half  of  a  month  of  thirty  one 
days,  is  to  be  done  by  noon  of  the  sixteenth  day.  Grosvenor  v.  Magill,  37  111. 
239.  The  time  for  completing  commercial  contracts  is  not  limited  to  banking 
hours,  but  a  party  has  the  whole  business  day  to  deliver  or  to  pay.  Price  v. 
Tucker,  5  La.  Ann.  514.  When  the  law  sometimes  expressly  forbids  the  differ- 
ent hours  of  the  same  day  from  being  recognized  as  affecting  the  rights  of 
parties,  the  prohibition  must  be  confined  to  the  cases  enumerated.  Tufts  v. 
Carradine,  3  La.  Ann.  430.  By  the  statute  of  21  Hen.  III.,  the  twenty-eighth 
and  twenty-ninth  days  of  February  are  reckoned  as  one  day.  That  statute  is 
in  force  in  Indiana,  it  being  prior  to  4  James  I.  Swift  v.  Tousey,  5  Ind.  196. 
Fractions  of  days  will  only  be  noticed  when  necessary  to  prevent  great  mischief. 
Hampton  v.  Erenzeller.  2  Browne  (Penn.)  18;  Slingluff  v.  Ambler,  2  W.  N.  C. 
(Penn.)  67;  Malvin  v.  Sweitzer,  1  Luz.  Leg.  Obs.  (Penn.)  5.  In  the  service  of 
writs,  and  whenever  the  ends  of  justice  require  it,  the  inquiry  may  be  directed 
to  the  part  of  the  day,  to  the  hour,  minute,  or  second  even,  if  necessary,  when 
a  certain  act  was  done.  Wrangham  v.  Hersey,  3  Wils.  274;  Cutler  v.  Wads- 
worth,  7  Conn.  6;  Brainard  v.  Bushnell,  n  id.  16,  24. 

'  Lester  v.  Garland,  15  Ves.  248. 

(a)  See  Warren  v.  Slade,  23  Mich,  day  when  a  debt  becomes  payable  to 
1;  Westbrook  Mfg.  Co.  v.  Grant,  60  him,  and  there  is  no  evidence  showing 
Me.  88.  The  law  looks  into  fractions  whether  he  died  before  or  after  the 
of  a  day  only  when  it  becomes  import-  moment  when  his  claim  became 'pay- 
ant  to  the  ends  of  justice  to  do  so,  or  in  able,  the  statute  does  not  run  against 
order  to  decide  upon  conflicting  inter-  his  administrator  until  letters  of  ad- 
esis.  Levy  v.  Chicago  Nat.  Bank,  158  ministration  are  taken  out.  Atkinson 
111.  88,  102;  Maine  v.  Gilman,  11  Fed.  v.  Bradford  Building  Society,  25  Q.  B. 
Rep,  214;   Seward  V.  Hayden,  supra.  D.  377. 

(I>)  If  a  creditor  dies   intestate  on  the 


§  54-]  COMPUTATION    OF   TIME.  121 

Massachusetts  case,1  it  was  held  that  in  the  computation  of  the 
time  (six  years)  within  which  the  statute  runs  upon  a  note  pay- 
able on  demand,  the  day  upon  which  the  cause  of  action  accrued 
is  to  be  included,  and  that  upon  such  a  note  dated  Nov.  I,  1 8 1 1, 
the  statute  bar  was  complete  on  the  1st  of  November,  1817.2 
But  in  a  later  case  3  that  court  held  that,  in  computing  the  period 
(two  years)  within  which  an  administrator  may  be  sued,  the  day 
on  which  his  bond  is  given  is  to  be  excluded.  In  Pennsylvania,4 
it  is  held  that  the  day  on  which  a  cause  of  action  accrues  is  to  be 
excluded,  in  computing  the  time  of  limitation  for  bringing  actions. 
And  such  also  is  the  rule  laid  down  in  a  New  York  case;5  and 
this  rule  is  also  adopted  in  Kentucky.6  In  Missouri,7  where 
goods  were  delivered  to  a  vessel  under  a  special  contract,  it  was 
held  that  a  lien  attached  on  the  day  of  the  delivery  of  the  first 
parcel,  and  that,  in  estimating  the  time  when  the  statute  begins 
to  run,  the  day  of  the  delivery  should  be  excluded.8  In  New 
Hampshire,9  where  a  computation  is  to  be  made  from  the  time 
of  an  act  done,  the  day  when  the  act  is  to  be  done  is  included ; 
but  when  the  computation  is  to  be  made  from  or  after  a  certain 
date,  or  from  the  day  of  date,  the  day  of  the  date  is  to  be 
excluded;  and  this  seems  to  be  the  rule  in  Pennsylvania,10  Ken- 

'  Presbrey  v.  Williams,  15  Mass.  193.  See  Holden  v.  James,  11  Mass.  400; 
Bigelow  v.  Willson,  1  Pick.  (Mass.)  485. 

1  See  also  Little  v.  Blunt,  9  Pick.  (Mass.)  488;  Rex  v.  Adderley,  Doug.  462; 
Glassington  v.  Rawlins,  3  East,  407;  Castle  v.  Burditt,  3  T.  R.  623. 

3  Paul  :•.  Stone,  112  Mass.  27. 

4  Menges  v.  Frick,  73  Penn.  St.  137. 

*  In  Judd  v.  Fulton,  10  Barb.  (N.  Y.)  117,  it  was  also  held  that,  in  computing 
time,  the  first  day,  or  the  day  on  which  time  begins  to  run,  is  excluded;  and 
that  where  an  act  is  to  be  done  within  a  given  time,  the  party  has  the  whole  of 
the  last  day  in  which  to  perform  it;  but  that  if  it  is  to  be  done  after  thirty  days, 
the  party  has  the  whole  of  the  thirty-first  day  in  which  to  complete  it.  See 
Cornell  v.  Moulton,  3  Denio  (N.  Y.)  42. 

'Smith  v.  Cassidy,  9  B.  Mon.  (Ky.)  496. 

1  The  Mary  Blane,  12  Mo.  477. 

8  See  also  Blackman  v.  Nearing,  43  Conn.  56,  where  the  day  of  the  date  of  a 
note  made  payable  at  a  bank  was  held  to  be  excluded  in  determining  whether 
the  statute  had  run  thereon.  Salt  Springs  Nat.  Bank  v.  Barton,  58  N.  Y.  430; 
Osborne  v.  Moncure,  3  Wend.  (N.  Y.)  170. 

9  Blake  v.  Crowningshield,  9  N.  H.  304. 

10  Hampton  v.  Erenzeller,  2  Browne  (Pe,nn.)  369.  But  see  Lysle  v.  Williams, 
15  S.  &  R.  (Penn.)  135;  Taylor  v.  Jacoby,  2  Penn.  St.  495,  where  it  was  held  that, 
where  the  words  "  from  the  date  "  are  used  to  denote  the  terminus  d  quot 
an  immediate  interest  is  to  pass,  the  day  of  the  date  is  inclusive,  but  that  the 


122  STATUTES   OF   LIMITATION.  [CHAP.  V. 

tucky,1  Indiana,2  Illinois,3  Massachusetts,*  and  Alabama.5  But 
this  rule  applies  only  when  there  is  nothing  in  the  instrument 
showing  a  different  intention.6 

In  South  Carolina,  it  is  held  that  the  day  from  which  the  reck- 
oning commences  and  that  on  which  it  terminates  may  both  be 
included  or  excluded,  as  will  best  preserve  a  right  or  prevent  a 
forfeiture;7  and  the  same  rule  prevails  in  Texas,8  Maine 9  and 
Missouri.10  In  several  of  the  States,  in  computing  time  from  an 
act  done,  the  day  on  which  the  act  is  done  is  excluded,  as  in 
Texas,11  Alabama,12  New  York,13  Missouri,'4  Michigan  15  and  Con- 
rule  is  otherwise,  when  used  by  way  of  computation  in  an  instrument  to  per- 
petuate the  evidence  of  a  debt. 

1  Chiles  v.  Smith,  13  B.  Mon.  (Ky.)  460;  White  v.  Crutcher,  1  Bush  (Ky.)  472. 
Handley  v.  Cunningham,  12  id.  401;  Wood  v.  Com.,  11  id.  220. 

'  Brown  v.  Buzan,  24  Ind.  194. 

3  Protection  Life  Ins.  Co.  v.  Palmer,  81  111.  88. 

4  Bemis  v.  Leonard,  118  Mass.  502. 

*  Goode  v.  Webb,  52  Ala.  452. 

6  Goode  v.  Webb,  and  Bemis  v.  Leonard,  supra.  See  Homes  v.  Smith,  16  Me. 
181;  Page  v.  Weymouth,  47  Me.  238.  Where'  an  event  happens  within  two 
points  of  time,  it  is  considered  as  happening  in  the  middle  of  the  intermediate 
space  of  lime.  Contee  v.  Dawson,  2  Bland  Ch.  (Md.)  264.  Where  time  is  to 
be  computed  from  or  after  a  certain  day,  that  day  is  to  be  excluded,  unless  it 
■(appears  that  a  different  computation  was  intended.  Bigelow  v.  Willson,  1  Pick 
Mass.)  485;  Pyle  v.  Maulding,  7  J.  J.  Mar.  (Ky.)  202;  Jacobs  v.  Graham,  1 
Blackf.  (Ind.)  392;  Arnold  v.  United  States,  9  Cranch(U.  S.)  104;  Rand  v.  Rand. 
4  N.  H.  267;  Goswiller's  Case,  3  Penn.  200;  Blanchard  v.  Hilliard,  11  Mass.  85; 
Woodbridge  v.  Brigham,  12  id.  403,  13  id.  556;  Henry  v.  Jones,  8  id.  453;  Lorent 
v.  South  Carolina  Ins.  Co.,  1  N.  &  M.  (S.  C.)  505;  Bowman  v.  Wood,  41  111.  203; 
Wiggin  v.  Peters,  1  Met.  (Mass.)  127;  Ewing  7\  Bailey,  5  111.  420.  Where  a 
date  is  given,  both  as  a  day  of  the  week  and  a  day  of  the  month,  and  the  two 
are  inconsistent,  the  day  of  the  month  must  govern.  Ingersoll  v.  Kirby,  Walk. 
(Mich.)  27. 

1  Stale  v.  Schnierle,  5  Rich.  (S.  C.)  299. 

8  O'Connor  7/.  Towns,  1  Tex.  107. 

*  Windsor  v.  China,  4  Me.  298.  In  Maine  it  is  held  that  the  day  of  the  date 
of  a  note  is  excluded  in  the  computation  of  the  time  of  payment.  Holmes  v. 
Smith,  16  Me.  181.  See  also  Page  v.  Weymouth,  47  id.  238,  where  the  same 
rule  was  extended  to  the  publication  of  a  notice. 

10  State  v.  Gasconade  County  Court,  33  Mo.  102. 
"  Burr  v.  Lewis,  6  Tex.  76. 
"  Lang  v.  Phillips,  27  Ala.  311. 

"Cornell  v.  Moulton,  3  Den.  (N.  Y.)  12.  See  McGraw  v.  Walker,  2  Hilton 
<N.  Y.)404. 

14  Kirnm  t.  Osgood,  19  Mo.  60. 
"Gorham  v.  Wing,  10  Mich.  486. 


§  54-]  COMPUTATION   OF   TIME.  I23 

necticut ;  '  and  this  rule  is  applied  to  all  species  of  contracts  and 
bills  of  exchange,  promissory  notes,  policies  of  insurance,  wills, 
and  all  other  instruments;  and  they  are  to  be  so  understood  that 
the  day  of  the  date,  or  the  day  of  the  act  from  which  a  future 
time  is  to  be  ascertained,  is  to  be  excluded  from  the  computa- 
tion.2 But  all  these  rules  are  subject  to  the  exception  that  they 
must  yield,  when  necessary,  to  the  justice  of  the  case,  so  as  to 
protect  the  rights  of  the  parties  and  prevent  a  forfeiture,  if  this 
can  be  done  without  violating  a  clear  intention  of  the  parties  or 

1  Sands  v.  Lyon,  18  Conn.  28;   Avery  v.  Stewart,  2  id.  69. 

*  Weeks  v.  Hull,  19  Conn.  381.  Where,  in  a  statute,  time  is  computed  from 
an  act  done,  the  first  day  is  excluded.  Bigelow  v.  Willson,  1  Pick  (Mass.)  485; 
Homan  v.  Lowed,  6  Mass.  659;  Peables  v.  Hannaford,  iS  Me.  106.  In  New 
York,  in  computing  time  given  by  statute,  both  the  first  and  last  days  are 
excludsd.  Jackson  v.  Van  Valkenburgh,  8  Cow.  (N.  Y.)  260. (a)  So  in  Kentucky. 
Sanders  v.  Norton,  4  T.  B.  Mon.  (Ky.)  464.  In  Pennsylvania,  it  has  been  held 
that  the  first  day  is  included,  and  the  last  excluded,  Thomas  v.  Afflick,  16  Penn. 
St.  14;  but  the  rule  now  in  that  State  is  well  established,  that  when  a  certain 
number  of  days  are  allowed  to  do  an  act  in,  as,  whenever  by  rule  of  court  or 
statute  a  certain  number  of  days  are  allowed  to  do  an  act  in,  or  it  is  said  that 
an  act  may  be  done  within  a  given  number  of  davs,  the  day  on  which  the  rule 
is  taken  or  the  decision  is  made  is  to  be  excluded.  Black  v.  Johns,  68  id.  83; 
Thomas  v.  Premium  Loan  Ass'n,  3  Phila.  (Penn.)  425;  Marks  v.  Russell,  40 
Penn.  St.  372;  Duffy  v.  Ogden,  64  id.  240;  Cromelien  v.  Brink,  29  id.  522,  over- 
ruling Thomas  v.  Afflick,  supra;  McGowen  v.  Sennett,  1  Brewst.  (Penn.)  397; 
Ege's  Appeal,  2  Watts  (Penn.)  2S3;  s.  p.  Browne  v.  Browne,  3  S.  &  R.  (Penn.) 
496;  Sims  v.  Hampton,  1  id.  411;  and  in  a  late  case  it  is  held  that  the  day  on 
which  the  cause  of  action  accrued  should  be  excluded  in  computing  the  time  of 
limitation  for  bringing  actions.     Menges  v.  Frick,  73  Penn.  St.  137. 

(a)  In  New  York,  c.  677  of  the  Laws  56T,  47  N.  E.  889,  it  was  held  that, 
of  1892,  known  as  the  "  Statutory  Con-  under  the  law  of  1892,  an  act  required 
struction  Law,"  repealing  §  788  of  the  to  be  performed  fourteen  days  "  He- 
Code  of  Civil  Procedure,  provides  by  fore  "  March  16  may  be  lawfully  done 
§  27  that  "  a  number  of  days  specified  on  March  2;  and  that  the  statute  dis- 
as  a  period  from  a  certain  day,  within  closes  no  intention  "  to  materially 
which  or  after  or  before  which  an  act  change  the  existing  rule  for  the  corn- 
is  authorized  or  required  to  be  done,  putation  of  time,  except,  perhaps,  to 
means  such  number  of  calendar  days  more  definitely  fix  the  event  from 
exclusive  of  the  calendar  dav  from  which  the  count  is  to  be  made." 
which  the  reckoning  is  made.  *  *  *  This  is  also  the  rule  in  the  Federal 
In  computing  any  specified  number  of  courts.  Sheets  v.  Selden,  2  Wall.  (U. 
days,  weeks  or  months  from  a  specified  S.)  177,  190;  Dutcher  v.  Wright,  94 
event,  the  day  upon  which  the  event  U.  S.  553.  These  cases  were  not  over- 
happens  is  deemed  the  day  from  which  ruled  by  Taylor  v.  Brown,  147  U.  S. 
-the  reckoning  is  made.  The  day  from  640,  which  included  the  day  on  which 
which  any  specified  number  of  days,  a  patent  for  land  was  issued  in  the 
weeks  or  months  of  time  is  reckoned  computation  of  time.  See  Aultman  & 
shall  be  exclusive  in  makingthe  reckon-  Taylor  Co.  v.  Syme,  163  N.  Y.  54,  68. 
ing."     In  People  v.  Burgess,  153  N.  Y. 


124  STATUTES   OF   LIMITATION.  [CHAP.   V. 

a  positive  provision  of  the  contract.1  A  distinction  has  also  been 
made  between  the  date  and  the  day  of  the  date  of  a  written 
instrument,  and  between  mercantile  contracts  and  others,  and 
between  contracts  and  statutes;  but  these  distinctions  were  so 
prolific  of  confusion  and  of  so  little  practical  importance  that  the 
more  modern  cases  ignore  them.2  In  determining  the  time  within 
which  a  legacy  became  payable  under  it,  the  court  excluded  the 
day  from  which  the  computation  was  to  commence.3  In  an 
English  case,4  often  cited,  the  question  was,  whether  the  execu- 
tion of  a  lease  for  twenty-one  years,  to  commence  from  the  day 
of  the  date,  was  a  compliance  with  a  power  reserved  in  a  mar- 
riage settlement,  to  lease  for  twenty-one  years  "  in  possession, 
but  not  in  reversion,"  and  the  vital  question  whether  the  phrase 
"  to  commence  from  the  day  of  the  date  "  excluded  or  included 
the  day  on  which  the  lease  bore  date,  because  upon  that  would 
depend  whether  the  lease  was  a  lease  in  possession.  The  court 
established  the  principle  that  the  words  "  from  the  day  of  the 
date,"  when  used  in  an  instrument,  were  to  receive  an  inclusive 
or  exclusive  sense,  according  to  the  intention  with  which  they 
were  used,  to  be  derived  from  the  context  and  subject-matter, 
and  so  as  to  effectuate,  and  not  destroy,  the  deed  of  the  parties, 
and  that  there  was  no  absolute  or  invariable  meaning  to  be  attached 
to  them.     This  view  was  adopted  in  Pennsylvania,5  where  it  was 

1  Bigelow  v.  Willson,  supra;  Weeks  v.  Hull.  19  Conn.  381;  Windsor  v.  China, 
supra.  In  Blackman  v.  Nearing,  43  id.  56.  the  general  rule  was  held  to  be  that 
in  all  cases  where  a  period  of  time  is  to  be  reckoned  from  a  particular  day  or 
event,  under  a  contract,  will,  or  statute,  or  in  legal  proceedings,  the  day  of  such 
date  or  event  is  to  be  excluded,  except  that,  where  a  different  intent  appears  in 
a  particular  case,  the  intent  is  to  prevail. 

8  Weeks  v.  Hull,  supra;  Menges  v.  Frick.  73  Penn.  St.  137;  Windsor  v.  China, 
supra. 

'Sands  v.  Lyon,  18  Conn.  28.  In  Lester  v.  Garland,  15  Ves.  246,  the  day  of 
the  testator's  decease  was  excluded,  in  a  case  where,  under  a  will,  there  was  a 
bequest  of  personal  property  to  trustees  in  trust,  that  in  case  A.  should  "  within 
six  months  after  my  decease  "  give  security  not  to  marry  B.,  "  then,  and  not 
otherwise,"  the  trustees  should  pay  the  amount  of  said  estate  to  the  children 
of  A.,  with  a  proviso  that  it  should  go  over  if  A.  should  neglect  or  refuse  to 
give  such  security. 

4  Putfh  v.  Duke  of  Leeds,  Cowp.  714,  citing  Bellasis  v.  Hester,  1  Ld.  Paym. 
281;  Clayton's  Case,  5  Coke,  1;  Osborn  v.  Ryder,  Cro.  Jac.  135;  Bacon  v. 
Waller,  1  Rolle's  Rep.  387,  3  Bulst.  204;  Llewellyn  v.  Williams,  Cro.  Jac.  258; 
Hatter  v.  Ash,  3  Lev.  438,  1  Ld.  Raym.  84;  Seignorett  v.  Noguire,  2  Ld.  Raym. 
1241;  Thompson  v.  Vanbeek,  (Mich.  1736). 

'  Sims  v.  Hampton,  1  S.  &  R.  (Penn.)  411. 


£  55-1  COMPUTATION    OF   TIME.  1 25 

held  that  the  day  on  which  the  act  is  done  is  excluded  or 
included,  as  the  nature  of  the  case  indicated  to  the  court  that  a 
liberal  or  vigorous  construction  should  be  adopted.1 

SEC.  55.  Meaning  of  the  Word  "  Month."  —  In  England,  in  the 
absence  of  special  circumstances  leading  to  a  contrary  conclusion, 
a  month  is  usually  held  to  mean  a  lunar  and  not  a  calendar 
month.  But  now  it  is  enacted  by  statute  2  that  in  all  statutes 
the  word  "  month  "  shall  be  deemed  and  taken  to  mean  calendar 
month,  unless  words  be  added  which  show  that  lunar  month  is 
intended.  This  statute,  in  regard  to  the  construction  of  acts  of 
Parliament,  shifts  the  onus  of  proof  as  to  the  meaning  of  the 
term.  But  except  so  far  as  the  act  extends,  the  term  "  month  " 
still  in  temporal  matters  means  prima  facie  lunar  month,  though 
it  is  otherwise  in  ecclesiastical  matter.3  In  mortgage  transactions, 
a  month  means  calendar  month.  Respecting  the  length  of  a 
calendar  month,  it  is  sufficient,  when  the  months  are  broken, 
whatever  may  be  their  length,  to  go  from  one  day  in  one  month 
to  the  corresponding  day  in  the  other.4  Whatever  may  be  the 
common-law  rule,  it  is  now  quite  well  established  in  the  courts  of 
this  country  that,  when   the  word    "  month  "    is  employed  in  a 

1  O'Connor  v.  Towns,  1  Tex.  107.  In  Pellew  v.  Hundred  of  Winford,  9  B.  & 
C.  139,  Lord  Tenterden  said  that  it  was  impossible  to  reconcile  all  the  cases,  or 
to  deduce  from  them  any  clear  rule  or  principle.  In  an  action  on  the  statute  of 
hue  and  cry,  Morris  v.  Hundred  of  Gautris,  Hobart,  139,  a  majority  of  the  court 
held  that  the  day  of  the  robbery  was  to  be  included  in  computing  the  period 
wthin  which  it  was  necessary  to  bring  the  action,  partly  on  the  ground  that 
though  the  party  robbed  was  deserving  of  relief  and  pity,  yet  as  against  the 
innocent  hundred  the  law  was  highly  penal.  Under  the  statute  2  Geo.  II.  c.  23, 
which  directs  that  no  solicitor  shall  sue  for  his  fees  until  the  expiration  of  one 
month  after  delivering  his  bill,  the  month  is  to  be  reckoned  exclusively  of  the 
days  on  which  the  bill  is  delivered  and  the  action  brought.  Blunt  v.  Heslop,  8 
Ad.  &  El.  577.  In  Mitchell  v.  Foster,  4  P.  &  D.  150,  it  was  decided  that  the 
expression  "  ten  days'  notice  at  least  "  in  a  statute  means  ten  clear  days,  exclu- 
sively both  of  the  day  on  which  proceedings  are  taken  and  of  the  day  on  which 
the  cause  arose. 

2  13  &  14  Vict.  c.  21. 

3  Hipwell  v.  Knight.  1  Y.  &  C.  401;  Parsons  v.  Chamberlain,  4  Wend.  (N.  Y.) 
512;  Stephens  Bl.  (7th  ed.),  vol.  i,  283;  Walker  v.  Clements,  15  Q.  B.  1046; 
Castle  v.  Burditt,  3  T.  R.  623;  Rex  v.  Peckham,  Carth.  406;  Lacon  v.  Hooper, 
6  T.  R.  224;  Rex  v.  Adderly,  Doug.  462.  In  cases  of  lapse  and  quare  impedit, 
calendar  months  are  intended,  Catesby's  Case,  6  Coke,  62;  and  such  also  is  the 
rule  there  as  to  bills  and  notes.     Chitty  on  Bills,  542. 

4  Dav.  Prec.  (4th  ed.),  vol.  ii,  pt.  2,  p.  863,  note  s. 


126  STATUTES   OF    LIMITATION.  [CHAP.  V. 

statute,  it  is  considered  as  a  calendar  month ; '  and  such  is  also 
the  rule  when  it  is  referred  to  in  legal  proceedings,2  bills  of 
exchange,  and  promissory  notes,3  deeds,  contracts,  or  other  obli- 
gations. 4  (a) 

SEC.  56.  When  Act  is  to  be  done  "  by"  a  Certain  Day.  —  When 
an  act  is  to  be  done  by  the  fifteenth  day  of  a  month,  it  must  be 
done  and  fully  completed  on  the  fourteenth,  as  it  is  with  the 
intention  of  having  the  benefit  of  the  act  on  the  fifteenth,  that 
that  day  is  fixed  upon.5  (b) 

Sec.  57.  Year. —  The  word  "  year, "  when  employed  in  statutes 
or  obligations,  no   mention  being  made  of  any  other  system  of 

1  Brewer  v.  Harris,  5  Gratt.  (Va.)  285;  Hunt  v.  Holder),  2  Mass.  170,  Avery  v 
Pixley,  4  id.  460;  Strong  v.  Burchard,  5  Conn.  357;  Mitchell  v.  Woodson,  37 
Miss.  567;  Sprague  v.  Norway,  31  Cal.  173;  Kimball  v.  Lamson,  2  Vt.  138; 
Williamson  v.  Farrow,  1  Bailey  (S.  C  )  Const.  606;  Com.  v.  Shortridge,  3  J.  J. 
Mar.  (Ky.)  638;  Com.  v.  Chambre,  4  Dall.  (Penn.)  14.3;  Glenn  v.  Hebb,  17  Md. 
260;  Bartol  v.  Calvert,  21  Ala.  42;  Gross  v.  Fowler,  21  Cal.  392,  Moore  v.  Hous- 
ton, 3  S.  &  R.  69.  In  New  York  the  rule  was  otherwise  as  to  its  use  in  statutes, 
Loring  v.  Hailing,  15  Johns.  (N.  Y.)  119;  Parsons  v.  Chamberlain,  4  Wend. 
(N.  Y.)  512;  but  now,  by  statute,  it  is  provided  that  it  shall  be  construed  to 
mean  a  calendar  month,  and  not  a  lunar  month,  unless  otherwise  expressed 
In  Delaware,  Slate  v.  Jacobs.  2  Harr.  (Del.)  548,  the  term,  as  used  in  the  statute 
limiting  indictments  against  horse-racing,  cock-fighting,  etc.,  was  construed  to 
mean  lunar  months. 

'  Kelly  v.  Gilman,  29  N.  H.  385;  Tillson  v.  Bowley,  8  Me.  163;  People  v. 
Ulrich,  2  Abb.  (N.  Y.)  Pr.  28. 

3  Thomas  v.  Shoemaker,  6  W.  &  S.  (Penn.)  179;  Leffingwell  v.  White,  1  Johns. 
Cas.  (N.  Y.)  99. 

4  Sheets  v.  Selden.  2  Wall.  (U.  S.)  177;  infra,  125,  n.  In  Union  Bank  v.  For- 
rest, 3  Cranch  (C.  C.)  218,  the  term  "  month,"  as  used  in  a  bank  charter,  was. 
held  to  mean  calendar  month.  Shapley  v.  Garey,  6  S.  &  R.  (Penn.)  539;  Hardin 
v.  Major,  4  Bibb  (Ky.)  104.  "  For  the  space  of  one  month  after  return  day." 
and  "  within  one  month  from  return  day,"  are  equivalent  expressions.  Gore  v. 
Hedges,  7  T.  B.  Mon.  (Ky.)  520. 

1  Rankin  v.  Woodworth,  3  Penn.  48. 

(<;)  See  infra,  §  125,  n.     A  clause  in  held    that    it   means  a  lunar  month  of 

;t  p  »licy  of  fire  insurance  requiring  the  twenty-eight  days.     Com.  v.  Martin,  2 

insured  to  sue  for  a  loss  "  within  twelve  Penn.  Dist.  Rep.  338;  Com.  v.  Stanley, 

months  "    thereafter    means    calendar  12  Penn.  Co.  Ct.  543. 

months.      Muse  v.  London  Ass.  Corp.,  "  Thirty  days"   in  a  statute   is   not 

10S    N.  C.  240.     See  White   v.   Lapp,  4  synonymous  with  one  month,  as  it  may 

Ohio   Dec.  434,  4  Ohio  N.  P.  31;   Daley  be  more  or  less.     State  v.  Upchurch,  72 

7'.  Anderson,  7  Wvo.  1.  N.  C.  146. 

Bui  while  such  is  the   rule  when  ihe  (/>)  In    Coonley    v.    Anderson,  1    Hill 

word  "  month  "  is  used  in  a  statute  or  (N.  Y.)  519,  it  was  held  that  the  clause 

in    transactions    between    individuals,  "  by  the  first  of  November,"  meant  on 

yet  in  a  sentence  <'f  imprisonment,  it  is  or  before  that  date. 


§  57-]  COMPUTATION   OF   TIME.  127 

reckoning,  and  there  is  nothing  to  indicate  a  different  intention, 
is  construed  as  meaning  a  year,  according  to  the  Christian  calen- 
dar. 1  (a)  The  period  of  time  intended  to  be  designated  is  to  be 
determined  by  the  subject-matter  and  the  context  of  the  instru- 
ment or  statute,  and  that  signification  given  to  it  which  accords 
with  the  intention  of  the  party  using  it.' 

1  Engleman  v.  State,  2  Ind.  91.  Two  years  is  equivalent  to  twenty-four 
months.     Hopkins  v.  Chambers,  7  T.  B.  Mon.  (Ky.)  257. 

*  Thornton  v.  Boyd,  25  Miss.  598.  The  term  "  one  whole  year,"  used  in  the 
Massachusetts  act  of  1793,  c.  34,  respecting  settlements,  was  held  to  be  a 
political,  or  rather  a  municipal,  year;  viz.,  from  the  time  the  officer  is  chosen 
until  a  new  choice  takes  place,  at  the  next  annual  meeting  for  the  choice  of 
town  officers,  which  may  sometimes  exceed,  and  sometimes  fall  short  of,  a 
calendar  year.     Paris  v.  Hiram,  12  Mass.  262. 

(a)  The  word  "  year  "  is  usually  con-  Book  Co.,  9  Kan.  App  752;  Garfield 
strued  as  meaning  a  calendar  year.  Tp.  v.  Hubbell,  9  Kan.  App.  785;  State 
Garfield    Tp.    v,    Samuel    Dodsworth     v.  Appleby,  136  Mo.  408. 


128  STATUTES   OF    LIMITATION.  [CHAP.  VI. 


CHAPTER  VI. 

Equity,  Adoption  of  Statute  by  Courts  of. 

Sec.  58.  Adoption  of  Statute  in  Cases  Sec.  61.   Effect  of  Acquiescence. 

involving  Concurrent  luris-  62.    Distinction    between     Laches 

diction.  and  Acquiescence. 

59.  Rule   as   to  purely  Equitable  63.   When      Equity     will     supply 

Matters.  Remedy     upon      a      Claim 

60.  Stale  Demands.  barred  by  the  Statute. 

SEC.  58.  Adoption  of  Statute  in  Cases  involving  Concurrent 
Jurisdiction.  —  Courts  of  equity,  although  not  in  all  cases  bound 
by  the  statute  of  limitations,  unless  expressly  brought  within  its 
provisions,  have  nevertheless  acted  in  this  respect,  in  analogy  to 
courts  of  law,  and  given  effect  tothe  statute  *  in  all  cases  of  con- 

1  Wanmaker  v.  Van  Buskirk,  1  N.  J.  Eq.  685;  Thorp  v.  Thorp,  15  Vt.  ros; 
Munson  v.  Halloway,  26  Tex.  475;  Lewis  v.  Marshall,  1  McLean  (U.  S.)  16; 
s.  c.  5  Pet.  (U.  S.)  470;  Johnson  v.  Johnson.  5  Ala.  go;  Callard  v.  Tuttle,  4  Vt. 
491;  Manchester  v.  Matthewson,  3  R.  I.  237.  The  statute  of  limitations,  in 
Massachusetts,  operates  in  equity  as  well  as  at  law,  of  its  own  force,  and  not 
by  the  courtesy  or  discretion  of  the  courts.  But  direct  trusts,  created  by  deed 
or  will,  and  perhaps  trusts  existing  by  appointment  of  law,  are  not  within  reach 
of  the  statute.  Constructive  trusts,  resulting  from  agencies,  partnerships,  and 
the  like,  are  subject  to  the  statute.  Fraud  in  the  defendant  does  not  prevent 
the  statute  of  limitations  from  barring  a  suit  in  equity,  unless  it  be  actual  fraud, 
which  was  concealed,  and  which  the  party  had  no  mears  of  discovering,  till 
within  six  years  before  the  filing  of  the  bill.  A  constructive  trust  thus  arises  in 
case  of  a  partner  who,  after  the  dissolution  of  the  firm,  had  funds  remaining  in 
his  hands,  and  accounts  unsettled. (a)     Farnam  v.    Brooks,  9   Pick.   (Mass.)  212. 

(rt)  See  Patrick  v.  Sampson,  24  Q.  B.  well,  142   Mo.  266.     The  directors  of  a 

D.  12S;   Municipal   Freehold   Land  Co.  national  bank  are  not  express  trustees. 

v.  Pollington,  63  L.  T.  238;  In  re  Bow-  but  the  statute  of  limitations  and   the 

den,  45  Ch.  D.  444;  Currier  v.  Studley,  doctrine  of  laches  apply  to  their  official 

159  Mass.  17;   McMonagle  ?'.  McGlinn,  trust,  because  constructive  and  created 

8«;   Fed     Rep.  88;  Curtis  v.   Larkin,   94  by  operation  of  law.     Cooper    v.   Hill, 

id.  251.     A  constructive  resulting  trust,  94   Fed.    Rep.   582.     An   administrator 

(hough  denied   by  the  defendant's  an-  holds  the  funds  of  his  intestate's  estate 

swe-r  in  chancery,  may,  when   the  evi-  upon    a   direct  trust,  atising   by  opera- 

e  is  clear,  be  established  by  parol,  tion  of  law,  and   while  length  of  time 

and  after  great    lapse  of   time,  though  and    neglect    on   the  part  of   the  heirs 

usually  such   a   trust  will   be   regarded  furnish  a  presumption  that  he  has  dis- 

with    suspicion    by   a   court  of   equity,  tributed  and  paid  over  the  funds  of  the 

Cookfley   v.  Bryan,  2  App.  (D.  C  )  557;  estate,  yet  this    presumption    is    liable 

M    [ntire  v.  Prior,    173  (j.  S.  38;   Whit-  to    be    controlled    by  other    evidence, 

ney  v.  Fox,  166  id.  637;  Condit  v.  Max-  Fuller  v.  Cushman,  170  Mass.  286,  288. 


$  58.]  EQUITABLE   ACTIONS.  129 

The  statute  limiting  suits  against  executors  to  four  years  after  the  acceptance 
of  their  trust  is  a  bar  to  a  bill  in  equity,  in  cases  where  it  bars  a  suit  at  law. 
Burditt  v.  Grew,  8  Pick.  (Mass.)  108.  In  equity  the  statute  will  bar  an  equita- 
ble right,  where  at  law  it  would  have  operated  against  a  grant.  Miller  v. 
Mclntyre,  6  Pet.  (U.  S.)  61. 

Where,  in  settling  a  debt,  a  party  paid  S3, 000  in  cash,  and  gave  his  noie  for 
the  residue,  the  amount  of  both  of  which  exceeded,  by  mistake,  the  amount  of 
the  debt  $1,000,  it  was  held  that  a  cause  of  action  accrued  immediately  to  the 
party  making  the  payment  to  recover  back  the  $1,000;  and  that,  where  he 
made  no  effort  to  do  so  until  after  judgment  was  recovered  against  him  on  the 
ncte,  when  he  filed  a  bill  for  relief  to  that  extent  against  the  judgment,  an  action 
at  law  to  recover  back  the  over-payment  being  then  barred  by  the  statute,  the 
bill  was  also  barred  thereby. (b)  Bank  of  United  Stales  v.  Daniel,  12  Pet.  (U.  S.) 
32.  Where  the  statute  takes  away  the  right  of  entry,  or  would  bar  an  eject- 
ment in  twenty  years,  it  will,  by  analogy,  bar  relief  in  equity,  although  time 
within  which  a  writ  of  right  or  other  real  action  might  be  brought.  Elmen- 
dorf  z/.Taylor,  10  Wheat.  (U.  S.)  152;  People  v.  Everest,  4  Hill  (N.  Y.)  7;  Reeves 
v.  Dougherty,  7  Yerg.  (Tenn.)  222;  Hayden  v.  Bucklin,  9  Paige  (N.  Y.)  Ch.  512; 
Long  v.  White,  5  J.  J.  Mar.  (Ky.)  231;  Ridley  v.  Hettman,  10  Ohio,  524;  Saund- 
ers v.  Catlin,  1  D.  &  B.  (N.  C.)  Eq.  95;  Cleveland  Ins.  Co.  v.  Reed,  1  Biss. 
(U.  S.  C.  C.)  180;  Hovenden  v.  Annesley,  2  Sch.  &  Lef,  607;  Humbert  v.  Trinity 
Church,  24  Wend.  (N.  Y.)  587;  Moore  v.  Porcher,  1  Bailey  (S.  C.)  Eq.  195;  Hamil- 
ton v.  Hamilton,  18  Penn.  St.  20;  Wood  v.  Wood,  3  Ala.  756;  Cumming  v. 
Berry,  1  Rich.  (S.  C.)  Eq.  114;  Leggett  */.  Coffield,  5  Jones  (N.  C.)  Eq.  382; 
Phalen  v.  Cook,  19  Conn.  421.  In  general,  a  party  who  is  guilty  of  such  laches, 
in  pursuing  his  equitable  title,  as  would  bar  him  at  law,  is  barred  in  equity; 
but  equity  will  remove  the  legal  bar  proceeding  from  lapse  of  time,  as  it  would 
any  other  legal  advantage,  if  sought  to  be  used  unconscientiously.  Bond  v .  Hop- 
kins, 1  Sch.  &  Lef.  413.  See  Barnesly  v.  Powel,  t  Ves.  284;  Pincke  v.  Thorny- 
croft,  4  Bro.  C.  C.  328,  4  Bro.  P.  C.  92;  Foxcroft  v.  Lester,  2  Vern.  456,  n.; 
Colles,  108;  Pulteney  v.  Warren,  6  Ves.  73.  But  see  Duval  v.  Terry,  Show.  15. 
Where  lands  are  devised  in  trust  for  payment  of  debts,  the  statute  of  limita- 
tions does  not  run  after  the  death  of  testator,  against  debts  not  barred  thereby 
at  his  death.  Fergus  v.  Gore,  1  Sch.  &  Lef.  107;  Burke  v.  Jones,  2  Ves.  &  B. 
275.  A  plea  of  the  statute  by  an  executor  was  allowed  where  the  testator  died 
in  1786,  but  probate  was  not  taken  in  1802,  the  allegation  of  the  bill,  upon  a  fair 
construction,  being,  that  the  defendant  had  possessed  the  personal  estate,  and 
therefore  might  have  been  sued  as  executor  de  son  tort  previously  to  1792. 
Webster  v.  Webster,  10  Ves.  93.  Non-payment  of  rent  reserved  on  a  lease, 
though  for  more  than  twenty  years,  will  not  bar  the  lessor  from  recovering  pos- 
session at  the  expiration  of  the  term.  Saunders  v.  Annesley,  2  Sch.  &  Lef.  106. 
As  there  is  no  statute  of  limitations  to  bar  a  legal  rent  charge,  in  equity  such  a 
bar  will  not  be  permitted  to  prevail,  but  the  demand  may  be  excluded  by  pre- 
sumption from  length  of  time,  and  acquiescence.  Stackhouse  v.  Barnston,  10 
Ves.  467;  Collins  v.  Goodall,  2  Vern.  235;  Eldridge  v.  Knott,  Cowp.  214;  Aston 
v.  Asion,  1  Ves.  264;  Cholmondeley  v.  Clinton,  2  Jac.  &  W.  141;  Troup  v.  Smith, 
20  Johns.  (N.  Y.)  47;  Thomas  v.  White,  3  Litt.  (Ky.)  177;  Taylor  v.  McMurray,  5 
Jones  (N.  C.)  Eq.  357;  Armstrong  v.  Campbell,  3  Yerg. (Tenn.)  201;  Dean  v.  Dean, 

(b)  Avritt  v.  Russell  (Ky.),  58  S.  W.  810. 
[stats,  of  lim. —  9] 


130  STATUTES   OF   LIMITATION.  [CHAP.  VI. 

current  jurisdiction;1  and    it    may  be  said    that    in  such    cases  a 

9  N.J.  425;  Van  Rhyn  v.  Vincent,  1  McCord  (S.  C.)  Eq.  310;  Murray  v.  Coster,  5 
Johns.  (N.  Y.)Ch.  522;  Kane  County  v.  Herrington,  50  111.  232;  At  water  v.  Fowler, 

1  Edw.  (N.  Y.)  Ch.  417;  Kane  v.  Bloodgood,  7  Johns.  (N.  Y.)  Ch.  90;  Lansing  v. 
Starr,  2  id.  150;  Badger  v.  Badger,  2  Cliff.  (U.  S.)  137;  Conover  v.  Conover,  r 
N.  J.  Eq.  403.  Effect  will  be  given  to  the  statute  of  limitations  in  equity  as  well 
as  at  law  in  proper  cases.  Lewis  v.  Marshall,  1  McLean  (U.  S.)  16;  Bank  of 
United  States  v.  Daniel,  12  Pet.  (U.  S.)  32;  Lewis  v.  Marshall,  5  id.  469;  Sharp  v. 
Sharp.  15  Vt.  105;  Collard  v.  Tuttle,  4  id.  491;  Humbert  v.  Trinity  Church,  24 
Wend.  (N.  Y.)  587;  McCrea  v.  Purmort,  16  id.  460;  Lansing  v.  Starr,  2  Johns. 
(N.  Y.)  Ch.  150;  Kane  v.  Bloodgood,  7  id.  90;  Murray  v.  Coster,  20  Johns. 
(N.  Y.)  576:  s.  c.  5  Johns.  (N.Y.)  Ch.  522;  Atwater  v.  Fowler,  1  Edw.  (N.Y.)  Ch. 
417;  Wanmaker  v.  Van  Buskirk,  1  N.  J.  Eq.  685;  Conover  v.  Conover,  id.  403; 
Watkins  v.  Harwood,  2  Gill  &  J.  307;  Lingan  v.  Henderson,  1  Bland  (Va.)  236; 
Harrison  v.  Harrison,  1  Call  (Va.)  419;  Ryan  v.  Parker,  1  Ired.  Ch.  89;  Mardre 
v.  Leigh,  1  Dev.  (N.  C.)  Eq.  360;  Van  Rhyn  v. Vincent,  1  McCord  (S.  C.)  Ch.  310; 
Cumming  v.  Berry,  1  Rich.  (S.  C.)  Eq.  114;  Moore  v.  Porcher,  1  Bailey  (S.  C.)  Ch. 
195;  Johnson  v.  Johnson,  5  Ala.  90;  Wood  v.  Wood.  3  id.  756;  Armstrong  v. 
Campbell,  3  Yerg.  (Tenn.)  201;  Shelby  v.  Shelby,  Cooke  (Tenn.)  fg;  McDoivell 
v.  Heath,  3  A.  K.  Mar.  222;  Thomas  v.  White,  3  Litt.  (Ky.)  177;  Perry  v.  Craig,  3 
Mo.  316.  An  allegation  in  the  bill  that  the  plaintiff  has  been  prevented  by  fraud 
from  asserting  his  claim  is  unavailing.  McCrea  v.  Purmort,  16  Wend.  (N.Y.)  460. 
In  cases  of  concurrent  jurisdiction,  courts  of  equity  are  bound  by  the  statute 
equally  with  courts  of  law.  And  there  are  other  cases,  not  of  concurrent  juris- 
diction, where  the  statute  is  applied  by  way  of  analogy  to  the  law.  Pratt  v. 
Northam,  5  Mas.  (U.  S.)  95.  In  prescribing  the  lime  within  which  a  bill  of 
review  may  be  brought,  a  court  of  equity  will  adopt  the  analogy  of  the  statute 
limiting  the  time  within  which  an  appeal  may  be  taken  to  a  decree.  Thomas  v. 
Harvie,  10  Wheat.  (U.  S.)  146.  A  court  of  equity,  as  to  equitable  rights,  may 
not  refuse  to  give  relief,  in  a  case  proper  for  it,  although  the  claim  has  been 
outstanding  for  a  long  time.  Chapman  v.  Butler,  22  Me.  191.  It  will  not 
presume  the  extinguishment  of  an  equity  of  redemption  from  lapse  of  time, 
where  the  person  entitled  is  under  any  of  the  disabilities  specified  in  the  statute 
of  limitations.  Wells  v.  Morse,  11  Vt.  9.  The  court  will,  in  analogy  to  the 
statute,  presume  a  settlement  and  payment  from  the  lapse  of  the  same  time,  if 
the  presumption  be  not  rebutted  by  evidence  which  satisfactorily  accounts  for 
the  delay,  and  the  case  is  not  within  the  exceptions  of  the  statute.  Spear  ?'. 
Newell,  13  Vt.  288;  Mardre  v.  Leigh.  1  Dev.  (N.  C.)  Eq.  366;  Ryan  v.  Parker.  1 
Ired.  (N.C.)  Eq.  89;  Harrison  v.  Harrison,  1  Call  (Va.)  419;  Watkins  v.  Harwood, 

2  G.  &  J  (Md.)  107;  Lingan  v.  Henderson,  t  Bland  (Md.)  Ch.  236:  Mitchell  v. 
Woodson,  37  Miss.  567;  Mandevill  v.  Lane,  28  id.  312;  Borden  v.  Peay,  20  Ark. 
293;  Harris  v.  Mills,  28  111.  44;  McDowell  v.  Heath, 3  A.  K.  Mar.  (Ky.)  222;  Shelby 
v.  Shelby,  Cooke  (Tenn  )  179;  Murphy  v.  Blair,  12  Ind.  184;  Bailey  v.  Carter,  7 
Ired.  (N.  C.)  Eq.  282;  Thomas  v.  Harvie,  10  Wheat.  (U.  S.)  146;  Judah  v.  Bran- 
don, 5  Blackf.  (Ind.)  506;  Lansing  v.  Starr,  2  Johns.  (N.  Y.)  Ch.  150;  Demarest 
v.  Wynkoop,  3  id.  129;    Perkins  v.  Cartwell,  4  Harr.  (Del.)  270. 

1  Bruen  v.  Hone,  2  Barb.  (N.  Y.)  586;   Phares  v.  Walters,  6  Iowa,  106;  Young 
7'.  Mackall,  3  Md.  Ch.  398;  Teackle  v.  Gibson,   8   Md.  70;    Hertle  v.   Schwartze, 

3  id.  366;   Knight  v.  Brawner,  14  id.  1;   Wilson   v.  Anthony.  19  Ark.  16;   Hill  v. 


§  58.]  EQUITABLE   ACTIONS.  I  3  I 

court  of  equity  will  no  more  disregard  the  statute  than  a  court 
of   law.'      Indeed,    Lord   Redesdale,  in  an    English   case,3  before 

Boyland,  40  Miss.  618;  Goff  v.  Robbins,  83  id.  153;  Perkins  v.  Cartmell,  4  Harr. 
(Del.)  270;  Gunn  v.  Brantley,  21  Ala.  633;  Crocker  v.  Clements,  23  id.  296; 
Keaton  v.  McGwier,  24  Ga.  217;  Manning  v.  Warren,  17  111.  267;  Philadelphia, 
etc.,  Trust  &  Ins.  Co.  v.  Philadelphia  &  Reading  R.  R.  Co.,  139  Penn.  St.  534; 
Herbert  v.  Herbert,  47  N.  J.  Eq.  11 ;  Norris  v.  Haggin,  136  U.  S.  386;  White  v. 
Pendry,  25  Mo.  App.  542;  Johnston  v.  S.  Mining  Co.,  39  Fed.  Rep.  321;  Jaffrey 
v.  Bear,  42  id.  569;  Burgess  v.  St.  Louis,  etc.,  R.  R.  Co.,  99  Mo.  496;  Jencks  v. 
Quidnick  Co.,  135  U.  S.  457;  Bates,  v.  Gillett,  132  111.  287;  Sanchez  v.  Dow,  23 
Fla.  445;  North  v.  Platte  Co.,  29  Neb.  447;  Mining  Co.  v.  Mining  Co.,  9  Col. 
343;  Breckenridge  v.  Churchill,  3  J.  J.  Mar.  (Ky.)  11.  In  Tiernan  v.  Rescaniere, 
10  G.  &  J.  (Md.)  217,  the  court  held  that,  when  relief  sought  in  equity  is  not 
more  comprehensive  than  that  which  might  have  been  obtained  at  law  for  money 
had  and  received,  the  statutory  bar  is  applied  the  same  as  it  would  be  at  law. 

1  Bailey  v.  Carter  7  Ired.  (N.  C.)  Eq.  282.  A  court  of  equity  will  give  effect 
to  the  statute  whenever  the  plaintiff  could  have  brought  an  action  at  law  for  the 
same  matter.  Godden  v.  Kimmel,  99  U.  S.  201;  Mann  v.  Fairchild,  2  Keyes 
(N.  Y.)  106;  Roosevelt  v.  Mark,  6  Johns.  (N.  Y.)  Ch.  266;  Clark  v.  Ford,  3  Keyes 
(N.  Y.)  370;  Stafford  v.  Bryan,  3  Wend.  (N.  Y.)  532;  McCrea  v.  Purmort,  16  id. 
460;  Spoor  v.  Wells,  3  Barb.  (N.  Y.)  Ch.  199;  Elmendorf  v.  Taylor,  10  Wheat. 
(U.  S.)  152;  Sherwood  v.  Sutton,  5  Mas.  (U.  S.)  143;  Pratt  v.  Northam,  5  id.  95; 
Hunt  v.  Wickliffe,  2  Pet.  (U.  S.)  201.  A  plea  of  the  statute  of  limitations  was 
overruled  upon  letters  produced,  assigning  reasons  for  declining  to  pay,  and 
recommending  the  plaintiff  to  bring  an  action,  as  amounting  to  a  sufficient 
acknowledgment  of  the  debt  to  take  it  out  of  the  statute,  upon  the  authorities, 
though  against  principle.  Baillie  v.  Sibbald,  15  Ves.  185;  Baillie  v.  Lord 
Inchiquin,  1  Esp.  435.  Payment  of  a  dividend  under  a  commission  of  bank- 
ruptcy against  one  partner  raises  a  new  assumpsit  bv  the  other,  depriving  him 
of  the  benefit  of  the  statute  of  limitations.  Ex  parte  Dewdney,  15  Ves.  499. 
Before  the  statute  of  4  Anne  c.  16,  §  19,  there  were  no  exceptions  in  the  statute 
of  limitations  in  this  country;  and  even  since  that  time  the  saving  in  that  statute 
is  not  extended  according  to  equity;  for  though  the  courts  of  justice  may  be 
closed  by  war,  so  that  no  original  could  be  filed,  yet  the  statute  continues 
to  run  against  a  demand.  Beckford  v.  Wade,  17  Ves.  87;  Aubry  v.  Fcrtescue,  10 
Mod.  206;  Hall  v.  Wybourn,  2  Salk.  420.  The  statute  does  not  bar  a  bill  of 
revivor,  after  a  decree  to  account,  but  it  rests  in  the  discretion  of  the  court  to 
give  or  refuse  relief.  Egremont  v.  Hamilton,  1  B.  &  B.  531;  Hollingshead's 
Case,  1  P.  Wms.  742;  Hovenden  v.  Annesley,  2  Sch.  &  Lef.  607.  In  Sugar 
River  Bank  :•.  Fairbank,  49  N.  H.  139,  Bellows,  C.  J.,  says:  "  Even  when  the 
statute,  in  terms,  applies  only  to  actions  at  law,  which  are  enumerated,  courts 
of  equity  act  in  analogy  to  it,  and  refuse  to  grant  relief  in  cases  coming  within 
its  provisions.  In  the  case  of  executors  and  administrators  the  limitations 
imposed  by  statutes  are  more  stringently  enforced  than  those  of  the  general 
statutes  of  limitations,  both  at  law  and  in  equity;  and  it  has  been  held  that  the 
omission  to  embody  in  the  former  statute  the  exceptions  contained  in  the  latter 


*  Hovenden  v.  Annesley,  2  Sch.  &  Lef.  629. 


132  STATUTES   OF    LIMITATION.  [CHAP.   VI. 

the  adoption  of  the  statute  of  Wm.  IV.,  wtich  expressly  extends 
the  statute  to  courts  of  equity,  held  that  courts  of  equity  did  not 
adopt  the  statute  merely  by  analogy,  but  in  obedience  to  the 
statute;  and  so  generally  did  the  English  courts  of  equity  follow 
the  statute,  that  the  enactment  of  the  statute  was  regarded  as 
giving  a  statutry  sanction  to  a  well-established  rule  of  those 
courts.1  (a) 

indicate  the  purpose  to  make  the  bar  of  suits  against  executors  and  administra- 
tors absolute."  See  also  Atwood  v.  Rhode  Island  Agricultural  Bank,  2  R.  I. 
191;  Walker  v.  Cheever,  39  N.  H.  420;  Judge  of  Probate  v.  Brooks,  5  id.  82; 
Cutter  v.  Emery,  37  id.  567;  Ticknor  v.  Harris,  14  id.  272;  Burdick  v.  Garrick, 
L.  R.  5  Ch.  234;  McCartee  v.  Camel,  1  Barb.  (N.  Y.)  Ch.  455;  Flood  v.  Patter- 
son, 29  Beav.  295;  Sibbering  v.  Balcarras,  3  De  G.  &  Sm.  735;  Downes  v.  Bul- 
lock, 9  H.  L.  Cas.  1;  Wright  v.  Vanderplank,  2  K.  &  J.  1;  Mills  v.  Drewitt,  20 
Beav.  632;  Portlock  v.  Gardner,  1  Hare,  594.  A  claim  by  a  creditor,  against  a 
legatee,  to  have  the  legacy  refunded  for  payment  of  the  debt,  will  be  barred,  in 
analogy  to  the  statute  of  limitations,  by  a  lapse  of  four  years  from  the  time 
when  the  insolvency  of  the  executor  was  ascertained  by  a  return  of  nulla  bona 
to  an  execution  against  him.  Miller  v.  Mitchell,  1  Bailey  (S.  C.)  Ch.  437.  The 
statute  of  Tennessee  does  not  run  to  bar  the  recovery  of  a  legacy  from  the 
executor,  in  equity,  there  being  no  statute  of  that  State  giving  a  legal  remedy. 
M'Donald  v.  M'Donald,  8  Yerg.  (Tenn.)  145.  Where,  by  statute,  the  action  of 
assumpsit  is  limited  to  three  years,  and  that  of  debt  to  six,  a  cause  of  action  on 
which  assumpsit  or  debt  may  be  brought  will  not  be  barred  in  the  fonn  of  debt 
under  six  years;  and  where  a  bill  in  equity  is  founded  on  the  same  cause  of 
action,  the  limitation  will  be  to  six  years.  Burdoin  v.  Shelton,  10  Yerg. 
(Tenn.)  41.  Where  a  party  attempts  to  enforce  in  equity  a  claim,  on  which 
debt  or  assumpsit  would  lie,  if  he  had  sued  at  law,  the  limitation  of  the  former 
action  being  three  years,  and  that  of  the  latter  six  years,  it  will  be  considered, 
in  respect  to  this  statute,  as  an  action  of  debt.  Bedford  v.  Brady,  10  Yerg. 
(Tenn.)  350.  Twenty  years'  adverse  possession  succeeding  an  actual  or  virtual 
disseisin  bars  a  suit  in  equity  as  well  as  at  law,  and  three  years  added  to  such 
adverse  possession,  after  infants,  who  hold  a  claim  to  land  in  controversy,  have 
arrived  at  full  age,  bars  their  claim.  Gates  v.  Jacob,  1  B.  Mon.  (Ky.)  306; 
Dexter  v.  Arnold,  3  Sum.  (U.  S.)  152;  Miller  v.  Mclniyre,  6  Pet.  (U.  S.)  61; 
Coulson  v.  Walton,  9  id.  62;  Lewis  v.  Marshall,  5  id.  470;  Bowman  v.  Wathen, 
1  How.  (U.  S.)  189;  Rhode  Island  v.  Massachusetts,  15  Pet.  (U.  S.)  233;  Peyton 
7.  Stith,  5  id.  485;  Bank  v.  Daniel,  12  id.  33;  Hayman  v.  Keally,  3  Cranch 
(C.  CO325. 

1  Cholmondeley  v,  Clinton,  2  Jac.  &  W.  56;   Hollingshead's  Case,  1  P.  Wms. 

(a)  When     a     person     enters    upon  562;  Agency  Co.  v.  Short,  13  A.  C.  793, 

another's   land    and  after  holding  pos-  798.     A  truslee  who  in  the  first  instance 

session  for  a  time,  abandons  possession  has  taken  possession  of  land  conveyed 

without    having   acquired     title    under  to   him    intrust   for   a   charity  under  a 

the  statute,  the  rightful  owner,  on  such  deed  not  voidable  but  absolutely  void, 

abandonment,  is  in   the  same  position  under   the   law  of    Mortmain,  may   ac- 

in    .ill    respects   as   he    was    before   the  quire  a  title  by  possession.     Churcher 

intrusion.     Smith    v.    Lloyd,    9    F.xch.  v.  Martin,  42  Ch.  D.  312. 


§  58.  j  EQUITABLE   ACTIONS.  I  35 

The  statute  is  regarded  as  a  defense,  as  well  in  equity  as  in 
law,  where  it  confers  absolute  rights  upon  the  party  seeking  its 
benefits.  Thus,  it  would  be  preposterous  to  suppose  that,  where 
the  title  to  land  has  become  absolute  in  a  person  by  an  adverse 
possession  for  the  statutory  period,  a  court  of  equity  is  not 
bound  to  give  effect  to  such  title,  as  well  as  a  court  of  law;  and 
without  regard  of  the  question  whether  the  statute  applies  in 
express  terms  to  courts  of  equity,  it  is  in  all  cases,  except  where 
relief  is  sought  on  the  ground  of  fraud,  bound  thereby,  when  the 
statute  has  conferred  absolute  rights  upon  a  person,  or  when  its 
jurisdiction  over  the  subject-matter  is  only  concurrent  with  that 
of  courts  of  law.1     The  principal  reasons  for  this  analogous  appli- 

743;  Edsell  v.  Buchanan,  2  Ves.  83;  Soulh  Sea  Co.  v.  Wymoncisell,  3  P.  Wms. 
143.  As  to  titles  to  land,  the  party  has  twenty  years  to  assert  his  title,  and 
failing  to  do  so  a  court  of  equity  can  afford  no  relief  to  him;  in  such  cases  the 
court  acls  not  by  analogy,  but  in  obedience  to  those  statutes,  considering  them- 
selves bound  thereby  in  all  cases  of  legal  titles  and  legal  demands;  and  wher- 
ever the  legislature  has  limited  a  period  for  law  proceedings,  courts  of  equity 
deem  themselves  equally  restricted  in  analogous  cases.  Hovenden  v.  Lord 
Annesley,  2  Sch.  &  Lef.  630;  Smith  v.  Clay,  Amb.  645.  So,  with  respect  to 
trusts  in  equity,  the  distinction  is  that  if  the  trust  be  constituted  by  act  of  the 
parties,  the  possession  of  the  trustee  is  the  possession  of  the  cestui  que  trust, 
and  no  length  of  such  possession  will  bar;  but  if  a  party  is  to  be  constituted  a 
trustee  by  the  decree  of  a  court  of  equity,  founded  on  fraud,  or  the  like,  his  pos- 
session is  adverse,  and  the  statute  of  limitations  will  run  from  the  time  that  the 
fraud  was  discovered.  Hollingshead's  Case,  1  P.  Wms.  742;  Lockey  v.  Lockey. 
Prec,  Ch.  518;  Booth  v.  Lord  Warrington,  1  Bro.  P.  C.  455;  Weston  v.  Cart- 
wright,  Sel.  Ch.  Cas.  34;  South  Sea  Co.  v.  Wymondsell,  3  P.  Wms.  158;  Bick- 
nell  v.  Gough,  3  Atk.  538.  Every  new  right  of  action  in  equity  must  be  acted 
upon  within  twenty  years  after  it  accrues.  Smith  v.  Clay,  Amb.  645;  Floyer 
v.  Lavington,  1  P.  Wms.  268;  Deloraine  v.  Browne,  3  Bro.  Ch.  633;  Beckford 
v.  Close,  id.  644;  Hercy  v.  DinwDody.  4  id.  257. 

1  Phalen  v.  Clark,  19  Conn.  420.  This  doctrine  is  adopted  in  the  U.  S.  courts, 
in  which  it  is  held  lhat,  when  courts  of  equity  have  concurrent  jurisdiction 
with  courts  of  law,  they  are  bound  by  general  statutes  of  limitation,  in  the  same 
manner  as  courts  of  law,  and  act  in  obedience  to  the  statute,  and  not  merely  in 
analogy  to  it.  Bank  of  United  States  v.  Daniel,  12  Pet.  (U.  S.)  32;  Sherwood  v. 
Sutton,  5  Mas.  (U.  S.)  143;  Pratt  v.  Northam,  id.  95;  Baker  v.  Biddle.  Baldw. 
(U.  S.)  394.  See  also  Union  Bank  of  Louisiana  v.  Stafford,  12  How.  (U.  S.)  327. 
The  statute  is  a  bar  to  an  equitable  right,  where  at  law  it  operates  against  a 
grant.  Miller  v.  Mclntyre,  6  Pet.  (U.  S.)6i,  affirming  s.  c,  1  McLean  (U.  S.  C, 
C.)  85.  So  they  are  applied  by  courts  of  equity,  in  all  cases  where  at  law  they 
might  be  pleaded.  Coulson  v.  Walton,  q  Pet.  (U.  S.)  62.  A  court  of  equity 
considers  an  equitable  claim  to  land  as  barred,  when  the  right  of  entry  is  lost, 
and  the  right  to  file  a  bill  does  not  continue  beyond  that  time,  until  the  time  for 
bringing  a   writ  of  right  has  passed.     Elmendorf  v.  Taylor,  10  Wheat.  (U.  S.) 


134  STATUTES   OF   LIMITATION.  [CHAP.   VI. 

cation  of  the  statute  in  courts  of  equity  are,  that  the  evils  result- 
ing from  great  delay  in  enforcing  equitable  rights  are  equally  as 
great  as  those  resulting  from  delay  in  enforcing  legal  rights,  and 
also  because,  unless  courts  of  equity  acted  in  analogy  to  these 
statutes  in  cases  where  a  party  has  a  choice  of  forums,  the  result 
would  be  that  the  effect  and  real  end  of  the  statute  would 
be  eluded.1  But  in  cases  where  relief  is  sought  upon  the 
ground  of  fraud  on  the  part  of  the  defendant,  the  courts,  in  a 
proper  case,  depart  from  this  rule,  and  give  relief,  unless  the 
plaintiff  has  been  guilty  of  unreasonable  laches  in  seeking  his 
remedy  in  equity.2  (a) 

In  an  English  case,3  the  plaintiff  brought  a  bill  in  equity  to 
recover  a  large  sum  of  money  which  he  had  been  induced  to  pay 
to  the  defendant  under  fraudulent  representations  from  him  that 
he  had  paid  a  large  sum  of  money  to  bring  about  a  marriage 
between  the  plaintiff  and  his  wife.  The  marriage  took  effect, 
and  the  plaintiff,  led  by  the  continuous  misrepresentations  of  the 
defendant,  paid  to  him  the  money  stipulated.  Nine  years  after 
the  money  had  been  paid  the  original  fraud  and  subsequent  man- 
agement to  delude  the  plaintiff  were  discovered,  and  then  it  was 
ascertained  that  the  defendant  not  only  never  had  paid,  but  also 
that  he  never  was  bound  to  pay,  a  farthing  on  account  of  the 
marriage.  To  the  bill  the  defendant  set  up  the  statute  of  lim- 
itations, and  the  questions  for  argument  were:  First,  whether 
an  action  at  law  lay  to  recover  damages  for  the  fraud ;  second,  if 
it  did,  at  what  time  did  the  cause  of  action  accrue;  and,  third, 

152;  Hunt  v.  Wickliffe,  2  Pet.  (U.  S.)  201;  Peyton  v.  Stith,  5  id.  485;  Lewis  v. 
Marshall,  id.  470;  Rhode  Island  v.  Massachusetts,  15  id.  233;  Pindell  v.  Mulliken, 
1  Black  (U.  S.)  5S5. 

1  Roosevelt  v.  Mark,  6  Joh  s.  (N.  Y.)  Ch.  266;  Troup  v.  Smith,  20  Johns. 
(N.  Y.)  33;   Elmendorf  v.  Taylor,  10  Wheat.  (U.  S.)  152. 

2  Kvans  v.  Bacon,  gg  Mass.  213. 

3  Booth  v.  Warrington,  1  Bro.  P.  C,  445. 

(/i)  As    to    accounting    for    infringe-  to  the  use  of  a  trade-mark  may  differ 

merit    of    a    trademark,    the   plaintiff's  according     to     the     circumstances    of 

failure  to  assert  his  right  as  against  the  different  cases.     Much  will  necessarily 

infringer,  within  a   year  from  the  time  depend  upon  the  extent  of  the   knowl- 

tif  the  discovery  of  such  infringement,  edge  which  1  he  complainant  possessed 

is    held    to    bar   his    right    to    recover  of  the  invasion  of  his  rights  and  upon 

profits.      In    N.     K.    Fairbank    Co.     v.  the  intention  of  the  infringer,  whether 

Luckel,    King    &    Cake   Soap   Co.,   106  fraudulent  or  not."    See  also  Rahtjen's 

Fed.  Rep.  498,  Gilbert,  Cir.  Judge,  said:  American  Composition  Co.  y.  Holzap- 

"  The   length   of   time  of  such   laches  'pel's   Composition   Co.,  101   Fed.   Rep. 

which  shall  be  deemed  to  be  an  assent  237;   Sanders  v.  Jacob,  20  Mo.  App.  96, 


§  58.]  EQUITABLE   ACTIONS.  135 

whether,  if  the  fraud  had  not  been  discovered  until  after  the 
expiration  of  six  years  from  the  accruing  of  the  cause  of  action, 
a  court  of  equity  could  then  give  relief.1  The  bill  was  held 
maintainable  upon  the  ground  that  courts  of  equity  would  relieve 
a  party  against  the  consequences  of  the  defendant's  fraud,  even 
though  the  remedy  is  barred  at  law.  In  many  of  the  statutes, 
express  provision  is  now  made  in  favor  of  parties  in  cases  where 
the  cause  of  action  has  been  fraudulently  concealed,  and  in  States 
where  no  such  exception  exists  it  is  held  that,  even  at  law,  the 
statute  does  not  begin  to  run  until  the  fraud  is  discovered.2 

Fraud,  in  order  to  constitute  an  exception  to  the  statute,  must 
be  the  fraud  of  the  party  setting  it  up;  and  the  statute  of  limita- 
tions relating  to  executors,  etc.,  if  it  can  be  avoided  by  any  fraud, 
can  only  be  avoided  by  a  fraud  of  the  executors  themselves,  and 
not  of  third  persons,  with  whom  they  have  no  privity.  If  an 
administrator  charged  with  fraud  dies,  and  his  sureties  are  also 
dead,  the  legatees  must  commence  their  suit  against  the  repre- 
sentatives of  the  deceased  within  the  three  years  provided  by  the 
statute.  It  seems  that  if  fraud  is  to  be  set  up  to  bar  the  statute, 
it  must  be  stated  in  advance  in  the  bill,  so  that  the  fact  may  be 
put  in  issue.3 

In  New  York,  it  is  expressly  provided  that  the  statute  shall  in 
all  cases  apply  to  courts  of  equitv,  where  that  court  has  concur- 
rent jurisdiction  over  the  subject-matter  with  courts  of  law,  but 

1  This  case  has  been  followed  by  numerous  cases  involving  the  same  question. 
Sherwood  v.  Sutton,  5  Mas.  (U.  S.)  143.  Lord  Redesdale,  in  Bond  v.  Hopkins, 
1  Sch.  &  Lef.  429,  declared  that  where  a  title  exists  at  law  and  in  conscience, 
and  the  effectual  exeition  of  it  at  law  is  unconscientiously  obstructed,  relief 
should  be  given  in  equity.  See  also  Hovenden  v.  Lord  Annesley,  2  Sch.  &  Lef. 
634;  Cholmondeley  v.  Clinton,  2  Jac.  &  VV.  141;  Troup  v.  Smith,  29  Johns. 
(N.  Y.)  47;  Sherwood  v.  Sutton,  5  Mas.  (U.  S.)  143.  In  Michoud  z>.  Girod,  4 
How.  (U.  S.)  561,  the  court  say:  "  In  a  case  of  actual  fraud,  we  believe  no  case 
can  be  found  in  the  books  in  which  a  court  of  equity  has  refused  to  give  relief 
in  the  lifetime  of  either  of  the  parties  upon  whom  the  fraud  is  proved."  First 
Mass.  Turnpike  Co.  v.  Field,  3  Mass.  201,  has  been  often  approved  in  this 
country,  in  which  the  courl  says:  "  If  this  knowledge  is  fraudulently  concealed 
from  the  plaintiff  by  the  defendant,  we  should  violate  a  sound  principle  of  law 
if  we  permitted  the  defendant  to  avail  himself  of  his  own  fraud."  See  also,  to 
the  same  effect,  Weller  v.  Fish,  3  Pick.  (Mass.)  74;  Bishop  v.  Settle,  3  Me.  405; 
Homer  v.  Fish,  1  Pick.  (Mass.)  435;  and  Jones  v.  Conoway,  4  Yeates  (Penn.) 
109,  where  the  same  rule  was  adopted  in  actions  at  law. 

'  See  chapter  on  Fraud. 

'  Pratt  v.  Northam,  5  Mas.  (U.  S.)  95. 


I36  STATUTES   OF    LIMITATION.  [CHAP.   VI. 

not  in  cases  where  such  courts  have  exclusive  jurisdiction  over 
the  subject-matter.  In  cases  where  relief  is  sought  on  the  ground 
of  fraud,  the  relief  must  be  sought  within  six  years  from  the  time 
of  its  discovery;  and  if  relief  is  sought  in  a  case  involving  a  trust 
which  is  not  cognizable  by  a  court  of  law,  it  must  be  brought 
within  ten  years  after  the  cause  of  action  accrued,  except  that,  if 
the  party  seeking  relief  was  under  any  of  the  disabilities  provided 
for  in  the  statute  when  the  cause  of  action  accrued,  the  period  dur- 
ing which  such  disability  existed  is  not  to  be  reckoned.1  The 
statute  of  Nevada,  which  embraces  all  "civil  actions,"  is  held 
to  extend  to  and  embrace  equitable  as  well  as  legal  actions,  and 
courts  of  equity  are  held  to  be  bound  by  the  statute  in  all  cases 
equally  with  courts  of  law.3  In  Indiana,  it  is  held  that  the 
statute  providing  that  actions  for  relief  against  fraud  shall  be 
brought  within  six  years  after  the  cause  of  action  accrued  applies 
as  well  to  suits  in  equity  as  to  actions  at  law.'  In  New  York, 
the  courts  held  that  under  the  statute  referred  to  a  suit  in  equity 
must  be  brought  within  ten  years  from  the  time  when  the  right 
accrued,  in  all  cases  where  the  proceeding  is  to  enforce  a  right 
not  cognizable  at  law; 4  and  the  same  rule  applies  in  cases  where 
the  jurisdiction  is  concurrent,  but  the  legal  remedy  is  imperfect 
or  inadequate.5  Thus,  it  has  been  held  that  this  section  of  the 
statute  applies  to  an  action  to  redeem  a  mortgage  by  a  person 
having  a  right  to  redeem,  but  who  was  not  made  a  party  to  the 
foreclosure  proceeding,6  to  actions  for  a  specific  performance  of  a 
contract,7  to  reform  a  contract,8  to  subject  land  to  the  payment 
of  the  testator's  debts,9  to  redeem  stock  or  other  personal  prop- 
erty pledged  as  collateral  for  a  debt,10  or  indeed  to  any  purely 

I  See  Appendix,  New  York. 

'  White  v.  Sheldon,  4  Nev.  280. 

8  Pilcher  v.  Flinn,  30  Ind.  202. 

4  White  v.  Methodist  Church,  3  Lans.  (N.  Y.)477;  Elwood  v.  Deifendorf,  5 
Barb.  (N.  Y.)  398;  Lindsay  v.  Hyatt,  4  Edw.  Ch.  (N.  V.)g7;  Spoor  v.  Wells,  3 
Barb.  Ch.  (N.  Y.)  199.  See  Cooper  v.  Emery,  1  Phill.  388;  Corbyn  v.  Bram- 
ston,  3  Ad.  &  El.  63. 

II  Clarke  v.  Boorman,  18  Wall.  (U.  S.)493;  Rundle  v.  Allison,  34  N.  Y.  180; 
Mann  v.  Fairchild,  14  Barb.  (N.  Y.)  548. 

•  Miner  v.  Beekman,  50  N.  Y.  337;   Hubbell  v.  Sibley,  50  id.  468. 
'  Peters  v.  Delaplaine,  49  N.  Y.  3(12. 
■Oakea  v.  Howell,  27  How    Pr.  (N.  Y.)  145. 
•Wood  ■'.  Wood,  26  Barb.  (N.  Y.)  356. 
'"  Roberts  v.  Sykes,  30  Barb.  (N.  Y.)  173. 


§  58. ]  EQUITABLE   ACTIONS.  I  37 

equitable  action  not  involving  a  question  of  fraud,  in  which  latter 
case  it  comes  under  the  six  years'  clause,  and  the  code  has  made 
no  essential  change  in  this  respect.1 

But  independently  of  any  express  statute,  equity  adopts  the 
statutes  of  limitation,  and  refuses  relief  upon  stale  demands  and 
claims,  even  though  the  statute  has  not  run  upon  them,  except 
where  a  reasonable  excuse  is  presented  for  delay.  When  it  per- 
ceives that  the  party  has  equitable  rights,  and  that  a  court  of  law 
might  prove  insufficient  to  protect  them,  it  will  not  in  a  proper 
case  refuse  relief,  even  though  the  claim  has  been  long  outstand- 
ing;3 and  especially  do  they  make  an  exception  in  the  case  of 
direct  technical  trusts,  and  fraudulent  concealment  of  the  cause 
of  action.3  Nor  will  the  statutory  bar  be  applied  in  equity,  so 
long  as  an  action  at  law  will  lie  upon  the  instrument  upon  which 
the  equitable  action  is  predicated.4 

The  statute  is  applied  in  equity  in  matters  of  account,5  to 
actions  to  remove  a  cloud  upon  a  title,6  to  actions  to  foreclose 
mortgages,7  or  title   bonds,8  or  for  the  specific  performance  of 

1  Montgomery  v.  Montgomery,  3  Barb.  (N.  Y.)  Ch.  132;  Borst  v.  Corey,  15 
N.  Y.  505. 

'Chapman  v.  Butler,  23  Me.  191.  In  matters  of  account,  even  where  they  are 
not  barred  by  statute,  courts  of  equity  refuse  to  interfere  after  a  considerable 
lapse  of  time,  from  considerations  of  public  policy  and  from  the  difficulty  of 
doing  entire  justice,  when  the  original  transactions  have  become  obscure  by 
time,  and  ihe  evidence  may  be  lost.  McKnight  v.  Taylor,  1  How.  (U.  S.)  161. 
But  mere  lapse  of  time  will  not  defeat  equitable  relief  when  time  is  not  of  the 
substance  of  the  contract,  and  the  party  seeking  relief  has  acted  fairly,  though 
negligently,  unless  the  delay  has  been  so  long  as  to  justify  a  presumption  that 
he  had  abandoned  the  contract.  Getchell  v.  Jewett,  4  Me.  350.  See  Belknap 
v.  Gleason,  n  Conn.  160. 

3  McLain  v.  Ferrell,  1  Swan  (Tenn.)  48. 

4  McNair  :•.  Ragland,  1  Dev.  Eq.  (N.  C.)  533;  Bidwell  v.  Astor  Mut.  Ins.  Co., 
16  N.  Y.  263;   Wood  v.  Ford,  29  Miss.  57. 

'Mann  v.  Fairchild,  3  Abb.  (N.  Y.)  App.  Dec.  152;  Hubbell  v.  Sibley,  50 
N.  Y.  468;  Atwater  v.  Fowler,  1  Edw.  (N.  Y.)  Ch.  417. 

'  Hodgen  v.  Guttery,  58  111.  431. 

7  Cleaveland  Ins.  Co.  v.  Reed,  1  Biss.  (U.  S.  C.  C.)  180;  Anderson  v.  Baxter, 
4   Oregon,  105;   Hall  v.  Denckla,  28  Ark.  506. 

1  Day  v.  Baldwin.  34  Iowa,  380.  The  statute  has  been  held  applicable  in 
equity  in  the  following  instances:  In  proceeding  to  set  aside  a  judgment  on 
account  of  fraud,  Moon  v.  Baum,  58  Ind.  194;  an  action  to  enforce  a  mortgage, 
Eubanks  v.  Leveredge,  4  Sawyer  (U.  S.)  274;  to  redeem  from  a  mortgagee, 
Smith  v.  Foster,  44  Iowa,  442;  to  vacate  a  judgment  on  the  ground  of  fraud. 
School  District  v.  Schreiner,  46  id.  172;  to  impeach  the  validity  of  a  decree  for 
a  divorce  a    mensa  et   thoro,  Bourlan  v.   Waggaman,  28  La.  Ann.  481;  to  annul 


I38  STATUTES   OF    LIMITATION.  [CHAP.   VI. 

contracts ;'  (a)  and  generally  courts  of  equity  adopt  the  statute 
in  analogy  to  the  nature  of  the  claim  sought  to  be  enforced; 
where  there  is  no  analogous  statute,  as  where  the  matter  is  purely 
equitable,  the  court  will  refuse  relief,  if  the  plaintiff  has  been 
guilty  of  laches  in  asserting  his  rights,  and  a  demand  will  often 
be  regarded  as  stale,  even  though  the  time  which  has  elapsed  is 
less  than  the  statutory  period.3 

This  doctrine  is  adopted  in  the  United  States  courts,  and  it  is 
there  held  that  in  all  cases  in  which  courts  of  equity  have  con- 
current jurisdiction  with  the  courts  of  law,  they  are  bound  by  the 
general  statutes  of  limitations  in  the  same  manner  as  courts  of 
law,  and  act  in  obedience  to  the  statute,  and  not  merely  in  anal- 
ogy to  it;3  and,  in  general,  these  courts  of  equity,  although  not 
in  strictness  bound  by  the  statute  of  limitations,  act  by  analogy 
to  it,  and  in  a  proper  case  apply,  as  an  equitable  rule,  the  limita- 
tion prescribed  by  the  statute.4  It  is  also  held  that  the  statute 
is  a  bar  to  the  equitable  right  when  at  law  it  would  have  operated 
against  a  grant.5  So,  too,  these  statutes  are  applied  by  courts 
of  equity  in  all  cases  where  at  law  they  might  be  pleaded,6  and 
effect  is  given  to  the  statute  of  limitations  in  equity  the  same  as 
in  courts  of  law,  and  as  well  where  the  origin  of  the  conflicting 

a  mortgage  on  the  ground  of  fraud,  Renshaw  v.  Herbert,  29  id.  285;  to  annul  a 
contract  on  the  ground  of  lesion,  Blake  v.  Nelson,  id.  245;  to  restore  a  record 
in  a  suit  to  enforce  a  contract,  Wyatt  v.  Sutton,  10  Heisk.  (Tenn.)  458;  to  reopen 
an  account,  Spruill  v.  Sanderson,  79  N.  C.  466;  to  enforce  the  liability  of  stock- 
holders for  the  debts  of  a  corporation,  Godfrey  v.  Terry,  97  U.  S.  171;  for  the 
division  of  lands  and  the  profits  thereof,  Harlow  v.  Lake  Superior  Iron  Co.,  41 
Mich.  583;  or  to  recover  for  lands  taken  under  legislative  authority,  Sommer  v. 
Pacific  R.  R.  Co.,  4  Mo.  App.  586;  or  to  recover  in  any  instance  where  the 
complainant  has  or  ever  had  a  remedy  at  law,  Cleaveland  v.  Williamson,  57 
Ala.  402. 

1  Brennan  -/.  Ford,  46  Cal.  7. 

8  Spaulding  v.  Farwell,  70  Me.  17. 

3  Bank  of  the  United  States  v.  Daniel,  12  Pet.  (U.  S.)  32;  Sherwood  v.  Sutton, 
5  Mas.  (U.  S.)  143;  Pratt  v.  Northam,  id.  95.  See  also  Union  Bank  of  Louisi- 
ana v.  Stafford,  12  How.  (U.  S.)  327. 

4  Sherwood  v.  Sutton,  5  Mas.  (U.  S.  C.  C.)  143;  Pratt  v.  Northam,  5  id.  95; 
Baker  v.  Biddle,  Baldw.  (U.  S.  C.  C.)  394.  See  also  Union  Bank  of  Louisiana 
v.  Stafford,  12  How.  (U.  S.)  327. 

6  Miller  v.  Mclntyre,  6  Pet.  (U.  S.)  61,  affirming  s.  C,  1  McLean  (U.  S.  C. 
O85. 

•Coulson  v.  Walton,  9  Pet.  (U.  S.)  62. 

a  See  Horner  v.  Clark  (Ind.  App.)  60  N.  E.  732. 


$  58-J  EQUITABLE   ACTIONS.  1 39 

titles  is  adverse  as  in  other  cases.1  Thus,  where  an  actual  adverse 
possession  had  continued  for  twenty  years,  it  is  held  to  constitute 
a  complete  bar  in  equity  wherever  the  same  possession  would 
operate  at  law  to  bar  an  ejectment,  upon  the  ground  that  a 
court  of  equity  considers  an  equitable  claim  to  land  as  barred 
when  the  right  of  entry  is  lost.  The  right  to  file  a  bill  does  not 
continue  beyond  that  time,  until  the  time  for  bringing  a  writ  of 
right  has  elapsed."  So  a  bill  claiming  title  to  and  praying  for  the 
possession  of  lands  will  be  dismissed  if  the  complainant  and  those 
through  whom  he  claims  have  taken  no  steps  to  assert  their  rights 
for  thirty  years;  the  land  being  during  all  that  time  in  the  adverse 
possession  of  the  defendants  and  their  ancestor.3 

The  power  conferred  by  the  statutes  of  some  of  the  States 
upon  courts  of  probate,  to  direct  a  sale  of  the  real  estate  of  an 
intestate  for  the  payment  of  debts,  must  be  exercised  within  a 
reasonable  time  after  the  death  of  the  intestate;  and  gross  neg- 
lect  or  delay  on  the  part  of  the  creditors  for  an  unreasonable  time 
is  a  waiver  or  extinguishment  of  it.  Although  this  power  is  not 
within  the  purview  of  the  statute,  it  is  within  its  equity;  and 
by  analogy  to  the  cases  where  a  limitation  has  been  applied  to 
other  rights,  the  reasonable  period  within  which  this  power  may 
be  exercised  is  limited  to  the  same  period  which  regulates  rights 
of  entry.4 

When  a  party  by  his  own  fraud  has  prevented  the  other  party 
from  coming  to  a  knowledge  of  his  rights,  he  cannot,  in  good 
conscience,  avail  himself  of  the  statute;  and  if  necessary  a  court 
of  equity  will  relieve  the  party  upon  whom  the  fraud  was  prac- 
tised; and  this  is  the  case  where  the  jurisdiction  of  the  courts  of 
law  and  equity  are  concurrent,  as  where  a  court  of  equity  has 
exclusive  jurisdiction.6 

1  Miller  v.  Mclntyre,  6  Pet.  (U.  S.)  61. 

2  Klmendorf  v.  Taylor,  10  Wheat.  (U.  S.)  152;  Hunt  v.  Wickliffe,  2  Pet.  (U.  S.) 
201;  Peyton  v.  Stith,  5  id.  485;  Lewis  v.  Marshall  id.  470;  Rhode  Island  v. 
Massachusetts,  15  id.  233. 

3Pindell  v.  Milliken,  1  Black  (U.  S.)  585. 

*  Ricard  v.  Williams,  7  Wheat.  (U.  S.)  59. 

5  Sherwood  v.  Sutton,  5  Mas.  (U.  S  )  143.  The  Supreme  Court  of  the  United 
States  says:  "  In  a  case  of  actual  fraud  we  believe  no  case  can  be  lound  in  the 
books  in  which  a  court  of  equity  has  refused  to  give  relief  in  the  lifetime  of 
either  of  the  parties  upon  whom  the  fraud  is  proved."  Michoud  v.  Girod.  4 
How.  (U.S.)  561.  In  First  Mass.  Turnpike  Co.  v.  Field,  3  Mass.  201,  the  court 
<;ays:     "  If  this   knowledge  is  fraudulently  concealed  from  the  plaintiff  by  the 


140  STATUTES   OF   LIMITATION.  [CHAP.  VI. 

In  England,  by  the  statute  of  William  IV.,  chapter  27,  §  17,  a 
period  of  forty  years  is  fixed  as  the  extreme  limit  within  which 
any  proceedings  may  be  taken.  Notwithstanding  this,  a  sixty 
years  title  is  still  necessary,  and  the  rule  which  requires  a  vendor 
to  give  it  in  the  absence  of  conditions  to  the  contrary,  remains 
unaltered.  One  ground  of  this  rule  was  the  duration  of  human 
life,  and  that  is  not  affected  by  the  statute.1 

In  a  New  York  case,2  an  action  to  annul  a  marriage  on  the 
ground  of  fraud  was  held  to  be  embraced  within  the  six  years, 
clause;  and  in  a  later  case  in  the  same  State,5  an  action  to  enforce 
an  equitable  lien  for  the  purchase-money  of  lands,  or,  indeed,  to 
any  case  where  fraud  is  alleged  and  relied  upon,  the  same  rule  is 
adopted.  In  matters  of  account,  even  where  they  are  not  barred 
by  statute,  courts  of  equity  refuse  to  interfere,  after  a  considerable 
lapse  of  time,  from  considerations  of  public  policy,  and  from  the 
difficulty  of  doing  entire  justice  where  the  original  transactions 
have  become  obscure  by  time,  and  the  evidence  is  lost.4  But 
mere  lapse  of  time  will  not  defeat  equitable  relief  when  time  is 
not  of  the  substance  of  the  contract,  and  that  party  seeking 
relief  has  acted  fairly,  though  negligently,  unless  the  delay  has 
been  so  long  as  to  justify  a  presumption  that  he  had  obtained  the 
contract.5  But  these  statutes  being  statutes  of  repose,  suspend 
the  remedy,  and  do  not  cancel  the  debt ;  and  although  equally 
available  as  a  defense  at  law  and  in  equity,  yet  where  there  are 
two  securities  for  the  same  debt,  one  of  which  is  barred  by  the 
statute  and  the  other  not,  the  creditor,  notwithstanding  he  has 
lost  his  remedy  at  law  on  the  former,  may  pursue  it  in  equity  on 

defendant,  we  should  violate  a  sound  principle  of  law  if  we  permilted  the 
defendant  to  avail  himself  of  his  own  fraud."  See  Weller  v.  Fish,  3  Pick. 
(Mass.)  74;  Bishop  z.  Seitle,  3  Me.  405;  Homer  v.  Fish,  1  Pick.  (Mass.)  435; 
and  Jones  v.  Conoway,  4  Yeates  (Penn.)  109,  where  the  same  rule  was  adopted 
in  actions  at  law. 

1  Cooper  v.  Emery,  1  Phill.  388.  The  seventeenth  section  of  the  act  referred 
to  has  been  held  to  be  retrospective.  Corbyn  v.  Bramston,  3  Ad.  &  El.  63.  But 
the  question  seems  not  to  be  free  from  doubt  as  the  words  are,  perhaps,  in 
strictness,  prospective  and  different  from  those  in  some  other  sections.  And  in 
a  note  to  N'epean  7/.  Loe,  in  2  Smith's  Lead.  Cas.  662,  it  is  suggested  that  the 
question  may  be  still  open. 

,;  M  mtgomery  v.  Montgomery,  3  Barb.  (N*.  Y.)  Ch.  132. 
Borsl  ■■'.  C:>rey,  15  N.  Y.  505. 

*  McKnigtat  V.  Taylor,  1  How.  (U.  S.)  161. 

1  (ictchell  t.  Jcwctt,  4  Me.  350. 


$  59-]  EQUITABLE   ACTIONS.  141 

the  latter.  Where  the  security  for  a  debt  is  a  lien  on  property, 
personal  or  real,  that  lien  is  not  impaired  in  consequence  of  the 
debt  being  barred  by  the  statute  of  limitations.1 

The  statute  has  been  held  applicable  in  equity  in  the  following 
instances:  In  proceedings  to  set  aside  a  judgment  on  account  of 
fraud  ; a  in  an  action  to  enforce  a  mortgage ; 3  to  redeem  from  a 
mortgagee;4  to  vacate  a  judgment  on  the  ground  of  fraud;5  to 
impeach  the  validity  of  a  decree  for  a  divorce  a  mensa  et  tJwro  ; 6 
to  annul  a  mortgage  on  the  ground  of  fraud ; 7  to  annul  a  contract 
on  the  ground  of  lesion ; 8  to  restore  a  record  in  a  suit  to  enforce 
a  contract;9  to  reopen  an  account;10  to  enforce  the  liability  of 
stockholders  for  the  debts  of  a  corporation ;  !1  for  the  division  of 
lands  and  profits  thereof; 12  or  to  recover  for  lands  taken  under 
legislative  authority;13  or  to  recover  in  any  instance  where  the 
complainant  has  or  ever  had  a  remedy  at  law.14 

SEC.  59.  Rule  as  to  purely  Equitable  Matters.  —  As  to  matters 
of  equitable  cognizance  merely  unless  in  express  terms  it  is  made 
applicable  thereto,  the  statute  does  not  apply.16     In  other  words, 

1  Belknap  v.  Gleason,  11  Conn.  160.  Where  a  debt  due  from  A.  to  B.  was 
secured  by  a  promissory  note,  made  by  B.  in  April,  1817,  payable  in  five  years, 
and  by  a  mortgage  of  real  estate,  executed  by  B.  at  the  same  time,  but  the  note 
was  never  in  fact  paid,  and  B.  had  no  property  except  the  estate  mortgaged,  on  a 
bill  of  foreclosure  brought  by  A.  in  January,  1835,  it  was  held  that  he  was  not 
barred  of  his  right  as  mortgagee,  and  the  relief  sought  was  decreed.  In  such  a 
case  the  finding  of  a  debt  due  from  B.  to  A.,  as  a  basis  of  a  decree  of  fore- 
closure, would  not  preclude  B.  from  availing  himself  of  the  statute  of  limita- 
tions, in  a  subsequent  action  on  the  note.     Ibid. 

8  Moon  v.  Baum,  58  Ind.  194. 

3  Eubanks  v.  Leveredge,  4  Sawyer  (U.  S.  C.  C.)  274. 

4  Smith  v.  Foster,  44  Iowa,  442. 

6  School  District  v.  Schreiner,  46  Iowa,  172. 
6  Bourlon  v.  Waggaman,  28  La.  Ann.  481. 

I  Renshaw  v.  Herbert,  29  La.  Ann.  285. 
8  Blake  v.  Nelson,  29  La.  Ann.  245. 

8  Wyatt  v.  Sutton,  10  Heisk.  (Tenn.)  45S. 
10  Spruill  v.  Sanderson,  79  N.  C.  466. 

II  Godfrey  v.  Terry,  97  U.  S.  171. 

12  Harlow  v.  Lake  Superior  Iron  Co.,  41  Mich.  583. 
,3Somrr.er  v.  Pacific  R.  Co.,  4  Mo.  App.  586. 

14  Cleveland  v.  Williamson,  57  Ala.  402. 

15  Marsh  v.  Oliver,  14  N.  J.  Eq.  259;  Attorney-General  v.  Purmort,  5  Paige 
(N.  Y.)  Ch.  620;  Warner  v.  Daniels,  1  W.  tt  M.  (U.  S.)  91.  The  court  will  not 
apply  the  statute  of  limitations  to  a  demand  purely  of  an  equitable  nature. 
Singleton  v   Moore,  Rice  (S.  C.)  Ch.  no.     An  action  barred  at  law  is  barred  in 


I42  STATUTES   OF   LIMITATION.  [CHAP.   VI. 

the  statute  is  not  binding  on  courts  of  chancery  in  cases  of 
exclusively  equitable  cognizance.  The  court  often  refuses  to 
interfere  where  there  have  been  gross  laches  or  a  long  or  unrea- 
sonable acquiescence  in  the  assertion  of  adverse  claims,  and 
adopts  in  cases  to  which  the  statute  does  not  strictly  apply,  a 
period  within  which  its  aid  must  be  sought,  similar  to  that  pre- 
scribed in  analogous  cases  at  law.1  But  where  the  claim  is 
purely  eqitable,  unless  expressly  so  provided,  the  statute  does 
not  apply  thereto,  and  lapse  of  time,  however  long,  will  not 
deprive  a  party  of  his  remedy  thereon  if  there  is  a  reasonable 
excuse  for  the  delay ; 2  as  the  court  will  not  allow  a  just  claim  to 
be  defeated  simply  because  of  the  lapse  of  time,  if  the  party  has 
not,  in  view  of  the  circumstances,  been  guilty  of  unreasonable 
delay.3 

equity.  Butler  v.  Johnson,  in  N.  Y.  204;  Diefenthaler  v.  New  York,  id.  331; 
Switzer  v.  Noffsinger,  82  Va.  518;  Metropolitan  Nat.  Bank  v.  St.  Louis  Dis- 
patch Co.,  36  Fed.  Rep.  322;   Humphrey  v.  Carpenter,  39  Minn.  115. 

1  Askew  v.  Hooper,  28  Ala.  634.  In  matters  purely  equitable,  if  there  is  an 
analogy  between  it  and  a  remedy  at  law,  the  same  limitation  is  usually  applied. 
Hancock  v.  Harper,  86  111.  445.  The  statute  cannot  be  pleaded  by  trustees,  in 
defense  of  a  charge  of  breach  of  trust,  or  of  neglect.  Milnes  v.  Cowley,  4  Price, 
103.  In  Cholmondeley  v.  Clinton,  2  Mer.  173,  357,  2  Jac.  &  Walker,  1,  151,  191, 
it  was  held  in  the  House  of  Lords  that  adverse  possession  of  an  equity  of 
redemplion  for  twenty  years  was  a  bar  to  another  person  claiming  the  same 
equity  of  redemption,  and  worked  the  same  effect  as  disseisin,  abatement,  or 
intrusion,  with  respect  to  legal  estate.  As  to  Ihe  rule  that  a  direction  by  will 
to  pay  debts  look  away  the  plea  of  the  statute  of  limitations,  there  is  a  distinc- 
tion belween  debts  on  simple  contract  and  bond;  in  the  former  the  debt  may 
have  existence  and  the  remedy  be  taken  away,  but  the  bond  debt  goes  upon  the 
presumption  of  payment.     Per  Eldon,  C,  in  Ex  parte  Roffey,  19  Ves.  470. 

'■  Pitzer  v.  Burns,  7  W.  Va.  63;  Askew  v.  Hooper,  28  Ala.  634;  Keaton  v. 
McGwier,  24  Ga.  217;  Burden  v.  Stein,  27  Ala.  104;  Union  Bank  v.  Stafford,  12 
How.  (U.  S.)  327;  Wood  v.  Ford,  29  Miss.  57. 

3  In  such  cases  the  burden  is  on  the  plaintiff  to  show  a  reasonable  excuse  for 
delay.  Pierce  v.  McClellan,  93  111.  245.  In  Cherry  v.  Lamor,  58  Ga.  541,  it  was 
held  that  where  bank  notes  have  been  sued  upon  in  due  time,  and  judgments 
thereon  recovered,  a  bill  to  bring  in  equitable  assets  and  subject  them  to  the 
judgments  for  the  satisfaction  thereof  is  not  governed  by  the  periods  of  limita- 
tion that  would  be  applicable  if  the  bank  notes,  instead  of  the  judgment,  were 
the  foundation  of  the  bill.  See  Locke  v.  Caldwell,  91  111.  417;  Johnson  v. 
Diversey,  82  111.  446,  and  93  111.  547;  Calwell  v.  Miles,  2  Del.  Ch.  no; 
Preston  ?>.  Preston,  95  U.  S.  200;  Neely's  Appeal,  85  Penn.  St.  387. 

A  bill  to  foreclose  a  mortgage  will  not  be  barred  on  the  ground  of  staleness 
even  after  the  lapse  of  thirty-five  years,  when  it  is  shown  that  the  mortgagor 
has  been  out  of  the  State  most  of  the  time,  and  had  apparently  abandoned  his 


§  59-J  EQUITABLE   ACTIONS.  143 

In  cases  where  the  jurisdiction  of  equity  is  concurrent  with 
courts  of  law,  that  is,  when  a  right  is  sought  to  be  enforced  in 
equity  for  which  the  party  has  a  remedy  at  law,  it  would  operate 
as  a  virtual  repeal  of  the  statute,  if  parties  by  a  change  of  forum 
could  evade  its  effect;  and  for  this  reason  there  is  much  justice 
in  the  view  that  courts  of  equity  are  no  more  exempt  from  these 
statutes  than  courts  of  law.1  (a)  This  cannot  be  said  to  be  the 
case  where  the  rights  sought  to  be  enforced  are  merely  matters 
of  equitable  jurisdiction,  because  the  ill  results  likely  to  ensue  in 
the  former  case  cannot  ensue  in  this,  and  also  because  this  class 
of  claims  cannot  be  said  to  be  within  the  spirit  or  intent  of  these 
acts,  unless  expressly  embraced  therein ;  in  such  cases  the  rights 
of  parties  are  enforced  without  reference  to  the  statute,  unless 
from  lapse  of  time  and  neglect  in  seeking  their  enforcement  they 
have  become  stale;3  and  the  argument  advanced  in  some  cases, 
that,  as  the  statute  of  James  was  in  force  when  our  statutes  were 
enacted,  the  legislatures  well  understood  the  manner  in  which 
the  English  courts  of  equity  had  considered  that  statute,  affords 
a  strong  presumption  that  the  legislature  intended  to  bind 
courts  of  equity  by  them,  as  well  as  courts  of  law,3  is  far-fetched 
and  fallacious,  as  these  statutes  are  construed  strictly  as  in  dero- 
gation of  vested  rights,  and  are  not  extended  by  implication  to 
casss  or  causes  of  action  not  fairly  embraced  within  the  language 
employed.     It  is  generally  held  by  our  courts  that,  except  in  the 

equity  of  redemption,  and  the  mortgagee  has  constantly  asserted  his  claim  by 
the  sale  of  part  of  the  premises,  paying  the  taxes  on  the  remainder,  and  by 
other  acts  of  ownership,  and  no  adverse  claim  had  been  asserted  until  about  a 
year  before  the  bill  was  brought. 

1  Bank  of  United  States  v.  Daniel,  12  Pet.  (U.  S.)  56.  See  Piatt  v.  Vattier,  9 
Pet.  (U.  S.)  416;  Kane  v.  Bloodgood,  7  Johns.  (N.  Y.)  Ch.  90;  Bowman  v. 
VVathen,  2  McLean  (U.  S.)  876;  Hawkins  v.  Barney,  5  Pet.  (U.  S.)  457;  Coulson 
v.  Walton,  9  id.  62;  Robinson  v.  Hook,  4  Mas.  (U.  S.)  139;  Baker  v.  Biddle,  1 
Baldw.  (U.  S.)  419;   Miller  v.  Mclntyre,  6  Pet.  (U.  S)  61. 

4  Lawrence  v.  Trustees,  2  Den.  (N.  Y.)  577;  Rockwell  v.  Servant,  54  111.  251. 

3  Farnam  v.  Brooks,  9  Pick.  (Mass.)  212;  Elmendorf  v.  Tavlor,  10  Wheat. 
(U.  S.)  168. 

(a)  Hawley  v.  Simons,   157  111.  218;  same  cause.     Met'n   Nat.   Bank  v.  St. 

Boone   v.    Colehour,    165   111.   305.     In  Louis    Despatch    Co.,    149    U.    S.  436; 

cases  where  there  are  concurrent  reme-  Baker  v.    Cummings,    169    U.    S.    189; 

dies   at  law   and    in  equity,  the  one  is  Carter  v.  Trice,  120  111.   277;   Home  v. 

not  barred  until  the  other  is,  and  equity  Ingraham,    125     111.    198;    Harding    v. 

will  not  apply  the  statute  by  analogy  Durand,  138  111.  515. 
while   an    action    at    law    lies    for    the 


144 


STATUTES   OF   LIMITATION. 


[CHAP.   VI. 


single  case  of  concurrent  jurisdiction,  courts  of  equity  may  act 
in  analogy  to  the  statute  or  not,  as  the  ends  of  justice  and  the 
strict  equity  of  the  case  seems  to  require.  Indeed,  equity  may 
refuse  relief  upon  the  ground  that  the  party  seeking  it  has  slept 
upon  his  rights  until  they  have  become  stale,  even  though  the 
statute   has   not   run   thereon;1  (a)  but   this   is  only  in  rare  and 


1  Hunt  v.  Ellison,  32  Ala.  173;  Hamlin  v.  Mebane,  1  Jones  (N.  C.)  Eq.  18; 
Ferson  v.  Sanger,  1  Davies  (U.  S.)  252;  Kerby  v.  Jacobs,  13  B.  Mon.  (Ky.)  435; 
Wilson  v.  Anthony,  19  Ark.  16. 


(a)  As  equity  is  not  dependent  upon 
statute  for  its  doctrine  of  laches  and 
acquiescence,  it  may  independently  of 
any  limitation  prescribed  for  the  guid- 
ance of  law  courts,  and  in  the  exercise 
of  its  own  inherent  powers,  refuse  re- 
lief upon  stale  demands  when  sought 
after  long  and  unexplained  delay,  and 
when  injustice  will  be  done  in  the 
particular  case  by  granting  the  relief 
asked.  Hammond  v.  Hopkins,  143  U. 
S.  224;  Abraham  v.  Ordway,  158  U.  S. 
416,  420;  Simmons  v.  Burlington,  etc., 
Ry.  Co.,  159  id.  278,  291;  Moran  v. 
Horsky,  178  id.  205,  208;  Ritter  v. 
Ultnan,  78  Fed.  Rep.  222;  Miles  v.  Vi- 
vian, 79  id.  848;  Brown  v.  Rutherford, 
14  Ch.  D.  687;  Masonic  &  General  Life 
Ass.  Co.  v.  Sharpe  [1892],  1  Ch.  154; 
De  Forest  v.  Walters,  153  N.  Y.  229; 
Fennyery  v.  Ransom,  170  Mass. 
303;  Brigham,  Petitioner,  176  Mass. 
223,  228;  Met'n  Lumber  Co.  v.  Lake 
Superior  Ship  Canal  Co.,  101  Mich.  577; 
Citizens'  Nat.  Bank  ?•.  Judy,  146  Ind. 
322;  Stevens  v.  Hertzler,  114  Ala.  563; 
Wilson  v.  Wilson,  23  Nev.  267;  Bell  v. 
Hudson  (73  Cal.  285),  2  Am.  St.  Rep. 
791,  and  n.;  2  Perry  on  Trusts  (5th  ed.), 
§§  860,  861,  863,  and  n.  Equity  thus 
acts  sometimes  in  obedience  to  the 
statute  of  limitations,  sometimes  in 
analogy  to  them.  Abraham  v.  Ord- 
way, 158  U.  S.  416,  420.  See  32  Am.  L. 
Retj.,  N,  S.,  319.  It  may  refuse  relief 
when  a  shorter  period  has  elapsed  than 
lhat  named  in  the  statute  of  limita- 
tions.     Whitney  v.  Fox,  166  U.  S.  637. 

The  question  of  laches  turns  not 
merely  upon  the  number  of  years 
which  have  elapsed  since  the  accruing 
or  assertion  of  the  plaintiff's  rights,  but 
also  upon  the  nature  and  evidence  of 
tii  jse  rights,  Changes  in  value  or  in  the 
relative  position  of  the  parties,  and 
Other  circumstances  occurring  during 
such  lapse  of   time.     Galliher   v.   Cad- 


well,  145  U.  S.  368,  371;  Townsend  v. 
Vanderwerker,  160  U.  S.  171 ;  Gilder- 
sleeve  v.  New  Mexico  Mining  Co.,  161 
U.  S.  572,  578;  Mclntire  v.  Prior,  173 
U.  S.  38;  Merrill  v.  Jacksonville  Nat. 
Bank,  id.  131 ;  Brown  v.  Wilson,  21  Col. 
309;  Killough  v.  Hinton  (54  Ark.  65), 
26  Am.  St.  Rep.  16;  Coffey  v.  Emigh 
(Col.),  10  L.  R.  A.  125,  and  n.;  Tucker 
v.  Fisk,  154  Mass.  574;  Cooke  v.  Bar- 
rett, 155  Mass.  413;  Smith  v.  Brown, 
164  Mass.  584.  The  mere  assertion  of 
a  claim  unaccompanied  by  any  act  to 
give  effect  to  it,  does  not  avail  to  keep 
alive  a  right  which  would  otherwise 
be  precluded.  Lane  &  Bodley  Co.  v. 
Locke,  150  U.  S.  193;  Gildersleeve  v. 
New  Mexico  Mining  Co.,  161  U.  S.  573, 
579.  The  mere  fact  of  delay  and  lapse 
of  time  is  never  so  material  to  the 
question  of  laches  as  is  the  amount  of 
disadvantage  thereby  caused  to  the 
other  party,  in  loss  of  evidence,  change 
of  title,  or  intervening  claims,  and  the 
like.     Chase  v.  Chase,  20  R.  I.  202. 

When  fraud  is  charged,  consisting  of 
misrepresentations  and  concealment, 
equity  is  reluctant  to  apply  the  rule 
at  all,  except  when  the  rights  of  inno- 
cent third  persons  will  be  injuriously 
affected.  Ibid.;  Saxlehner  v.  Eisner  & 
Mendelson  Co.,  179  U.  S.  19,  39;  James 
v.  Atlantic  Delaine  Co.,  3  Cliff.  (U.  S.) 
614,  621;  McMonagle  v.  McGlinn,  85 
Fed.  Rep.  88,  92;  Eiffert  v.  Ciaps  (U. 
S.),  38  Cent.  L.  J.  248.  Where,  for  in- 
stance, a  stockholder  in  a  bank  brings 
suit  to  set  aside  a  sale  of  mining  stock 
to  some  of  its  directors  bv  the  bank's 
trustee,  such  stockholder  will  rarely  be 
held  negligent  foi  not  examining  the 
books  of  the  bank,  and  the  directors' 
relation  to  him  is  so  far  fiduciary  that 
they  cannot  impose  upon  him  any  con- 
siderable degree  of  vigilance  in  ferret- 
ting  out  their  wrongdoing,  as  a  con- 
dition   precedent    to    his    right    to  sue 


§59-1  EQUITABLE  ACTIONS.  145 

exceptional  instances,  where  the  party  can  be  said  to  have  acqui- 
esced in  the  wrong  of  which  he  complains;  and  generally  a  right 
will  not  be  regarded  as  lost  for  staleness  by  a  period  less  than 
that  provided  for  the  limitation  of  analogous  cases  at  law,1  nor 
even  then,2  if  the  delay  is  reasonably  explained,  as  by  war  and 
loss  of  the  record.3  There  is  also  a  class  of  cases  covering 
another  ground  that  refute  the  idea  that  courts  of  equity  are 
absolutely  bound  by  the  statute  of  limitations  in  matters  of  purely 
equitable  cognizance.  Thus,  in  England,  it  has  been  held  that, 
where  a  party  applies  to  a  court  of  equity  and  carries  on  an 
unfounded  litigation,  protracted  under  circumstances  and  for 
such  a  length  of  time  as  to  deprive  his  adversary  of  his  legal 
rights,  a  court  of  equity  will  supply  a  substitute  therefor,  and 
administer  it  within  its  own  jurisdiction  so  as  to  effectuate  the 
legal  right  upon  which  the  statute  has  run.4  This  is  hardly  con- 
sistent with  the  theory  that  these  courts  are  absolutely  bound  by 
the   statute;  yet    the   exercise   of   this   power   is   not   favored  in 

1  Dugan  v.  Gittings,  3  Gill  (Md.)  138;    Reed  v.  West,  47  Tex.  240. 

2  Warners.  Daniels,  1  Wood.  &  M.  90;  Calwell  v.  Miles,  2  Del.  Ch.  no;  Neely's 
Appeal,  85  Penn.  St.  387;   Preston  v.  Preston,  95  U.  S.  200. 

3  Johnson  v.  Diversey,  82  111.  446,  and  93  111.  547.  In  Reed  v.  West,  47  Tex. 
240,  it  was  held  that  equity  would  follow  the  law  during  the  suspension  of  the 
statute  by  civil  war,  and  would  not,  except  for  some  equitable  reason,  hold  a 
party  guilty  of  laches  depriving  hiin  of  equitable  relief. 

4Pulteney  v.  Warren,  6  Ves.  73;  Bond  v.  Hopkins,  2  Sch.  &  Lef.  630;  East 
India  Co.  v.  Campion,  n  Bligh.  158;  Grant  v.  Grant,  2  Russ.  598. 

them  for  their  wrongful  acts.  Morgan  said:  "The  length  of  time  during 
.- .  King  (27  Col.),  63  Pac.  416,  419;  which  the  party  neglects  the  assertion 
lenkins  v.  Hammarschlag,  56  N.  Y.  S.  of  his  rights,  which  must  pass  in  order 
534;  Fitzgerald  v.  Fitzgerald  &  Mallory  to  show  laches,  varies  with  the  peculiar 
Const.  Co.,  44  Neb.  463;  Montgomery  circumstances  of  each  case,  and  is  not, 
Light  Co.  v.  Lahey,  121  Ala.  131.  like  the  matter  of  limitations,  subject 
In  Fosler  v.  Mansfield,  Coldwater,  to  an  arbitrary  rule.  It  is  an  equitable 
etc.,  R.  Co.,  146  U.  S.  88,  99,  Mr.  Justice  defense,  controlled  by  equitable  con- 
Brown  said:  "  The  defense  of  want  of  siderations,  and  the  length  of  time 
knowledge  on  the  pari  of  one  charged  must  be  so  great,  and  the  relations  of 
with  laches  is  one  easily  made,  easy  to  the  defendant  to  the  rights  such,  that 
prove  by  his  own  oath,  and  hard  to  dis-  it  would  be  inequitable  to  permit  the 
prove;  and  hence  the  tendency  of  courts  plaintiff  to  now  assert  them.  There 
in  recent  years  has  been  to  hold  the  must,  of  course,  have  been  knowledge 
plaintiff  to  a  rigid  compliance  with  the  on  the  part  of  the  plaintiff  of  the  exist- 
law  which  demands,  not  onlv  that  he  ence  of  the  riefht,  for  there  can  be  no 
should  have  been  ignorant  of  the  fraud,  laches  in  failing  to  assert  rights  of 
but  that  he  should  have  used  reasona-  which  a  party  is  wholly  ignorant,  and 
ble  diligence  to  have  informed  himself  whose  existence  he  has  no  reason  to 
ot  all  the  facts."  In  Halstead  v.  Grin-  apprehend."  See  also  Alsop  v.  Riker, 
nan,  152  U.  S.  412,  4.16,  Mr.  Justice  155  U.  S.  448. 
Brewer,  referring  to  the  last  quotations, 
[stats,  of  lim. —  10] 


146  STATUTES   OF   LIMITATION.  [CHAP.   VI. 

courts  of  equity  in  this  country,  and  it  is  hardly  believed  that, 
strictly,  it  ever  should  be  exercised,  unless  the  party  has  been 
enjoined  from  bringing  an  action  at  law,  and  the  statute  makes 
no  provision  for  saving  his  rights,  in  which  case  a  court  of  equity 
should,  where  it  can  do  so,  enforce  his  rights. 

SEC.  60.  Stale  Demands.  —  Courts  of  equity  always  discourage 
stale  demands,  by  refusing  to  enforce  them,  where  the  person 
setting  them  up  has  lost  his  moral,  if  not  his  legal,  right  to 
enforce  them ; '  and  the  question  as  to  whether  a  demand  is  stale 
or  not  depends  so  largely  upon  the  nature  of  the  claim  and  the 
peculiar  circumstances  of  each  case,  that  no  general  rule  can  be 
given  as  a  decisive  test.  The  fact  that  a  party  has  delayed  the 
enforcement  of  his  right  for  the  statutory  period  is  prima  facie 
sufficient;  but  even  this  is  not  decisive,  as,  if  there  is  a  sufficient 
excuse  for  delay,  the  court  will  enforce  the  right.2     And,  on  the 

1  Spaulding  v.  Farwell,  70  Me.  17;  Dickerman  v.  Burgess,  20  111.  266;  Stokes 
v.  Lebanon,  etc.,  Turnpike  Co.,  6  Humph.  (Tenn.)  241;  Edings  v.  VVhaley,  1 
Rich.  (S.  C  )  Eq.  301;  Marshall  v.  Means,  12  Ga.  6r.  A  courl  of  equity  will  not 
aid  parties  who  have  slept  on  their  rights,  Johnson  v.  Johnson,  5  Ala.  90;  Piatt 
v.  Vattier,  9  Pet.  (U.  S.)  405;  Coleman  v.  Lyne,  4  Rand.  (Va.)  454;  Hawley  v. 
Cramer,  4  Cow.  (N.  Y.)  717;  as  where  he  has  permitted  a  party  to  occupy  his 
lands  adversely  for  the  statutory  period,  even  though  he  did  not  know  the  fact, 
but  might  have  ascertained  it  by  reasonable  diligence.  Bowman  v.  VVathen,  1 
How.  (U.  S.)  189.  A  demand  which  has  been  suffered  to  lie  for  thirty  years, 
during  which  ths  principals  have  died,  is  regarded  as  stale,  and  equity  will  not 
enforce  it.  Randolph  v.  Ware.  3  Cranch  (U.  S.)  603.  In  Rogers  v.  Sanders,  16 
Me.  350,  it  was  held  that  where  the  binding  efficacy  of  a  contract  has  been  lost 
by  lapse  of  time,  equity  will  grant  relief  if  time  is  of  the  essence  of  the  contract. 
See  De  Grauw  v.  Mechan,  48  N.  J.  Eq.  219.  In  Stevens  v.  Union  Trust  Co.,  57 
Hun  (N.  Y.)  498,  it  was  held  that  so  long  as  a  legal  right  remains,  equity  will 
grant  relief  unless  Ihere  has  been  delay  or  acquiescence  amounting  to  a  recog- 
nition of  the  rights  of  the  adverse  party.  See  also  Dunne  v.  Stotesbury,  26  Pac. 
Rep.  (Cal.)  333;  Brush  v.  Manhattan  R.  Co.,  26  Abb.  N.  C.  (N.  Y.)  73. 

'  Preston  v.  Preston,  95  U.  S.  200;  Neeley's  Appeal,  85  Penn.  St.  387;  Reed 
v.  West,  47  Tex.  240;  Rogan  v.  Walker,  1  Wis.  631;  Lawrence  v.  Rokes,  61  Me. 
38;  MoKnight  v.  Taylor,  1  How.  (U.  S.)  161.  Where  an  executor  of  a  partner, 
deceased  after  a  partial  settlement  with  the  survivor  of  the  firm  lies  by  for 
seventeen  years  and  makes  no  claim  until  the  survivor  has  deceased,  and  until 
much  of  his  evidence  has  been  lost,  in  the  absence  of  a  reasonable  excuse  for 
the  delay,  he  cannot  bring  a  bill  for  account  against  the  representative  of  the 
deceased.  Codman  v.  Rogers,  10  Pick.  (Mass.)  112.  See  Mitchell  v.  Lenox,  1 
Edw.  (M.  Y.)  Ch.  428,  where  an  assignee  for  creditors  assigned  the  trust  prop- 
erty to  other  trustees  with  the  assent  of  the  creditors,  and  the  debtor  made  no 
objection  thereto,  an  acquiescence  of  eighteen   years  was  held  to  preclude  him 


§  6o.]  EQUITABLE   ACTIONS.  \tf 

other  hand,  delay  for  less  than  the  statutory  period  may  render 
the  demand  stale,  within  the  meaning  of  the  term  as  employed 
in  equitable  parlance.1  In  an  English  case,3  the  court  refused 
relief  to  a  reversioner  for  waste,  although  the  bill  was  brought 
two  days  before  the  lapse  of  the  statutory  period,  on  the  ground 
that  under  the  circumstances  he  had  been  guilty  of  unreasonable 
laches.      But  in  another  case3  a  decree  was  made  thirty-eight 

from  an  equitable  remedy.  See  In  re  Neilley,  95  N.  Y.  382.  In  Atwater  v. 
Fowler,  1  Edw.  (N.  Y.)  Ch.  417,  a  partner  to  whom  an  account  had  been  pre- 
sented by  his  co-partner,  who  retained  it  for  thirteen  years  without  objection, 
was  held  to  be  concluded  by  his  acquiescence  from  seeking  lo  have  the  accounts 
adjusted  in  equity.  In  Powell  v.  Murray,  10  Paige  (N.  Y.)  Ch.  256,  it  was  held, 
where  an  agreement  for  the  compromise  of  doubtful  claims  had  been  acquiesced 
in  for  thirty-eight  years,  and  those  who  were  competent  to  explain  the  transac- 
tion were  dead,  that  a  party  to  that  agreement  who  sought  to  invalidate  it  must 
clearly  show  that  the  agreement  was  improperly  obtained,  and  was  without 
consideration. 

1  Spaulding  v.  Farwell,  supra;  Neppach  v.  Jones,  20  Oregon,  491;  Marcolte  v. 
Hartman,  46  Minn.  202;  Harrison  v.  Gibson,  23  Gratt.  (Va.)  212.  In  Lawrence 
v.  Rokes,  61  Me.  38,  where  a  bill  in  equity  was  brought  to  adjust  the  accounts 
of  a  partnership,  and  it  appeared  that  by  the  laches  of  the  complainant  the 
respondents  had  lost  their  evidence,  or  were  placed  in  a  disadvantageous 
position,  it  was  held  that  the  court  would  deal  with  the  remedy  as  though  barred 
by  the  statute,  although  the  statute  had  not  in  fact  run  upon  the  claim,  and  it 
was  stated  that,  conversely,  where  peculiar  circumstances  justified  delay,  relief 
would  be  granted  although  the  statute  had  run  upon  the  claim.  And  see  Payne 
v.  Gardiner,  29  N.  Y.  146;  Boughton  v.  Flint,  74  id.  476;  Bean  v.  Tonnele,  94 
id.  381. 

2  Harcourt  v.  White,  28  Beav.  303. 

3  Duke  of  Leeds  v.  Amherst,  20  Beav.  239.  See  also  Morris  v.  Morris,  4  Jur. 
N.  S.  964.  In  Varick  v.  Edwards,  1  Hoff.  (N.  Y.)  Ch.  382,  it  was  held  to  be  a 
general  rule  that  the  lapse  of  twenty  years  operates  as  a  bar  to  a  suit  in  equity 
connected  with  the  recovery  of  land,  and  that  where  a  party  has  resorted  to  a 
court  of  law,  where  his  remedy  lay  in  equity,  or  vice  versa,  he  cannot  be  pro- 
tected against  the  time  so  lost.  But  when  time  is  set  up  as  a  conclusive  bar,  it 
will  only  be  treated  as  such  when  there  is  an  adverse  possession;  and  a  party 
setting  up  a  false  title  under  which  he  is  protected  in  possession  cannot  set  up 
that  possession  as  a  bar  to  a  parson  who  legally  has  the  right.  There  must  be 
conscience,  good  faith,  and  reasonable  diligence,  to  call  into  action  the  powers 
of  equity.  McKnight  v.  Taylor,  1  How.  (U.  S.)  161;  Bowman  v.  Wathen,  id. 
189;  Wagner  v.  Baird,  7  id.  234;  Maxwell  v.  Kennedy,  8  id.  222;  Ferson  v. 
Sanger,  1  Wood.  &  M.  (U.  S.)  138;  s.  c,  Dav.  252;  Cleveland  Ins.  Co.  v.  Reed, 
24  How.  (U.  S.)  284;  1  Bissell,  1S0.  Equity  will  not  interfere  in  favor  of  one 
who  has  been  guilty  of  gross  laches;  a  complainant  must  use  legal  diligence  in 
the  enforcement  of  his  rights.  Hollingsworth  v.  Fry.  4  Dall.  (U.  S.)  347- 
McKnight  v.  Taylor,  1  How.  (U.  S.)  161;  Bowman  v.  Wathen,  id.  189;  Wagner 
v.  Baird,  7  id.  234;  West  v.  Randall,  2  Mas.  181;  Perkins  v.  Currier,  3  W.  & 
M.  70;  Ferson  v.  Sanger,  Dev.  252;  Gordon  v.  Kerr,  1  Woolw.  322;  Longworth 


I48  STATUTES   OF    LIMITATION.  [CHAP.   VI. 

years  after  the  waste  was  committed,  being  "  that  the  author  of 
the  mischief  is  not  to  complain  of  the  result  of  it."  '  Generally 
it  is  an  invariable  rule  that  courts  of  equity  will  not  grant  relief 
to  a  party  who,  in  view  of  the  circumstances  of  the  case,  has 
been  guilty  of  gross  laches,  and  that  parties  are  required  to  use 
reasonable  diligence  in  the  enforcement  of  their  rights.2 

v.  Taylor,  1  McLean,  395;  Lewis  v.  Baird,  3  id.  57.  Thus  equity  will  not  give 
relief  to  parties  claiming  under  a  marriage  settlement,  who,  being  under  no 
disability,  have  slept  upon  their  rights  for  more  than  thirty  years;  especially 
against  executors  who  have  acted  in  good  faith.  De  Lane  v.  Moore,  14  How. 
(U.  S.)  253.  Even  in  case  of  asserted  fraud  a  court  of  equity  will  not  grant 
relief  if  the  plaintiff  has  been  guilty  of  gross  laches.  Gould  v.  Gould,  3  Story 
(U.  S.)  5t6;  Hough  v.  Richardson,  id.  660;  Veazte  v.  Williams,  8  How.  (U.  S.) 
134;  Fisher  v.  Boody,  1  Curt.  (U.  S.)  206.  After  the  lapse  of  sufficient  time  to 
afford  an  equitable  bar,  the  court  will  not  grant  relief,  though  the  plaintiffs, 
being  residents  of  another  State,  had  no  actual  notice  of  the  infringement  of 
their  rights.  Bowman  v.  Walhen,  1  How.  (U.  S.;  189;  Wagner  v.  Baird,  7  id. 
234.  See  Livingston  v.  Salisbury  Ore  Bed,  16  Blatchf.  549;  Kellog  v.  Wilson. 
89  111.  357;    Marshall  v.  Perty,  90  id.  289. 

1  Ars  Amat.  lib.  iv.  655.  The  application  of  the  statute  of  limitations  in 
courts  of  equity  in  England  to  all  analogous  matters  was  made  soon  after  such 
statutes  went  inlo  effect.  Beckford  v.  Wade,  17  Ves.  87;  Smith  v.  Clay,  3  Bro. 
Ch.  640,  n. ;  Bond  v.  Hopkins,  1  Sch.  &  Lef.  413.  Even  before  these  siatutes 
were  enacted  these  courts  refused  relief  upon  stale  demands,  where  a  party  had 
slept  upon  his  rights  so  long  that  their  enforcement  was  likely  to  operate  as  a 
fraud  upon  the  defendant,  or  upon  other  grounds  would  be  inequitable.  Chol- 
mondeley  v.  Clinton,  2  Jac.  &  W.  1.  But  when  a  party  has  equitable  rights,  it 
will  not  refuse  relief,  although  the  claim  has  been  outstanding  for  a  long  time, 
if  the  reason  for  delay  is  such  as  not  to  defeal  the  party's  claim  to  its  enforce- 
ment upon  the  ground  of  laches  or  acquiescence.  Lunn  v.  Johnson,  3  lred. 
(N.  C.)  Eq.  70;  Mason  v.  Crosby,  1  Davies  (U.  S.)  303;  Kimball  v.  Ives,  17  Vt. 
430;  Bancroft  v.  Andrews,  6  Cush.  (Mass.)  493. 

'  Ellison  v.  Moffatt.  r  Johns.  Ch.  (N.  Y.)  46;  Frost  v.  Coon,  30  N.  Y.  428;  Ray 
v.  Bogart,  2  Johns  Cas.  (N.  Y.)  432;  Hawthorn  v.  Bronson,  16  S.  &  R.  (Penn.) 
269;  Calhoun's  Appeal,  39  Penn.  St.  218;  Halsey  v.  Tate,  52  id.  3tt;  Cadvvalla- 
der's  Appeal,  57  id.  158.  "  The  doctrine  of  laches  is  based  upon  the  grounds  of 
public  policy,  which  requires  for  the  peace  of  society  the  discouragement  of 
stale  demands.  And  where  the  difficulty  of  doing  entire  justice  by  reason 
of  the  death  of  the  principal  witness  or  witnesses,  or  from  the  origitial  transac- 
tions having  become  obscured  by  time,  is  attributable  to  gross  negligence  or 
deliberate  delay,  a  court  of  equity  will  not  aid  a  party  whose  application  is  thus 
destitute  of  conscience,  good  faith,  and  reasonable  diligence."  Mackall  v. 
Casilear,  137  U.  S.  779.  See  Jenkins  v.  Pye,  12  Pet.  (U.  S.)  241;  McKnight  v. 
Taylor,  1  How.  (U.  S.)  161;  Godden  v.  Kimmell,  99  U.  S.  201;  Lansdale 
n.  Smith,  106  U.  S.  391;  Le  Gendre  v.  Byrnes,  44  N.  J.  Eq.  372;  Wilkinson  v. 
Sherman,  45  id.  413;  Speidel  v.  Henrici,  120  U.  S.  377;  Hanner  v.  Moulton,  138 
U.  S.  486;  Cressey  v.  Meyer,  id.  525;  Underwood  v.  Dugan,  139  U.  S.  380; 
Simmons  Creek  Coal  Co.  v.  Doran,  142  U.  S.  117;   Martin  v.  Gray,  id.  230. 


§  6o.]  EQUITABLE   ACTIONS.  H9 

In  New  York  it  is  held  that,  where  no  estoppel  or  acquiescence 
is  shown,  and  the  statute  of  limitations  has  not  run  at  law,  so 
that  a  legal  remedy  exists,  a  court  of  equity  will  not  refuse  relief 
on  the  ground  of  laches;  '  also  that,  so  long  as  the  legal  right 
exists,  the  owner  may  maintain  his  action  in  equity  to  restrain 
violations  of  this  right,2  and  that,  under  the  Code,  the  existence 
of  a  legal  cause  of  action  is  not  only  a  prerequisite  to  the  main- 
tenance of  the  equitable  action,  but  is  also  the  foundation  of  the 
jurisdiction  which  equity  courts  possess  in  reference  to  the  sub- 
ject-matter; the  law  makes  no  distinction  in  the  character  of  the 
injury,  but  prescribes  one  uniform  principle  for  redress,  without 
regard  to  the  nature  of  the  remedy  pursued.3 

Delay,  amounting  even  to  apparent  negligence,  may  be 
explained,  and  under  special  circumstances,  as  where  there  is 
difficulty  about  the  title,  it  does  not  amount  to  a  bar  to  relief  in 
equity.4     So  the  lapse  of  twelve  years  without  the  payment  of 

1  Piatt  v.  Piatt,  58  N.  Y.  646.  In  a  proper  case  relief  will  be  granted  although 
the  siaUUe  has  run,  except  where  the  statute  is  expressly  applied  to  courts  of 
equity.  Lawrence  v.  Rokes,  61  Me.  38.  A  court  of  equity  will  refuse  to  inter- 
pose to  relieve  a  party  against  an  inadvertent  omission  to  set  up  a  certain 
defense  where  he  has  been  guilty  of  unreasonable  laches.  Wilson  v.  Wilson,  2 
Lea  (Tenn.)  17;  Sargent  v.  Bigeloiv,  24  Minn.  370.  In  the  case  firstcited  above, 
three  years'  delay  was  held  to  amount  to  such  laches;  and  a  delay  of  six  years 
has  been  held  to  be  such  laches,  unexplained,  as  would  justify  the  court  in 
refusing  to  permit  a  complainant  to  file  an  amended  bill  setting  up  matters  in 
existence  when  the  original  bill  was  filed.  Marr  v.  Wilson,  2  Lea  (Tenn.)  229. 
But  a  supplemental  bill,  setting  up  new  matter  accruing  after  the  original  bill 
was  brought,  may  be  filed  three  years  after  the  original  Dill  was  filed,  although 
the  statute  of  limitations  in  such  cases  at  law  runs  in  two  years.  Cheek  v. 
Anderson,  2  Lea  (Tenn.)  194.  The  doctrine  of  stale  demands  or  laches  does  not 
apply  to  a  legal  title.  Boone  v.  Miller,  73  Texas,  557.  Nor  is  it  applicable  to 
a  claim  under  a  legal  title  in  an  action  of  trespass  to  try  title.  Bullock  v. 
Smith,  72  Texas,  545;  Montgomery  v.  Noyes,  73  id.  203;  Daniel  v.  Bridges,  id. 
149.  It  has  no  application  to  a  legal  title  and  does  not  apply  to  the  claims  of 
the  true  owner  of  land  when  set  up  by  a  person  claiming  under  a  tax  deed, 
where  the  prerequisite  steps  to  make  it  valid  have  not  been  taken.  Telfener  v. 
Dillard,  70  Texas,  139. 

2  Chapman  v.  Rochester,  no  N.  Y.  273;  Tallman  v.  Met.  El.  R.  Co.,  121  N.  Y. 
119;  Arnold  v.  Hudson  River  R.  Co.,  55  N.  Y.  661;  Uline  v.  New  York  Cent. 
R.  Co.,  101  N.  Y.  98;  Colrick  v.  Swinburne,  105  N.  Y.  503;  Broistedt  v.  South 
Side  R.  Co.,  55  N.  Y.  220;  see  especially,  Galway  v.  Met.  El.  R.  Co.,  12S  N.  Y.  132. 

3Krehl  v.  Burrell,  11  Ch.  D.  146;  Henderson's  Case,  78  N.  Y.  423;  Bald- 
win v.  Calkins,  10  Wend.  (N.  Y.)  167;  Williams  v.  N.  Y.  Cent.  R.  Co.,  16  N.  Y. 
ill. 

4  King  v.  Morford,  1  N.  J.  Eq.  274;  Nelson  v.  Carrington,  4  Munf.  (Va.)  332; 


150  STATUTES  OF    LIMITATION.  [CHAP.  VI. 

interest  On  a  mortgage  bond  lias  been  held  not  .sufficient  to  bring 

it  under  the  head  of  a  stale  demand.'  But  generally,  except 
where  the  explanation  of  the  delay  is  reasonable,  a  claim  in 
equity  must  be  exhibited  within  such  a  reasonable  time  that  the 

i  dint   may  do  no  injustice  to  the  defendant;   and  where  a  bill  was 

brought  to  recover  a  balance  claimed  to  be  due,  and  which  could 

only   be   determined    by  an   examination    of    accounts   more   than 

twenty-seven  years  old,  the  court  dismissed  the  bill  on  the  ground 

that  the  demand  was  stale.' 

Laches  and  acquiescence  as  a  bar  to  an  action  through  lapse  of 
time  are  only  applicable  to  equitable  rights,  and,  as  to  Legal 
rights,  mere  lapse  of  time  before  an  action  to  enforce  them  is 

barred,  is  of  no  moment. (a)  Silence  and  inaction  of  the  plaintiff, 
while   seeing   the   defendant    committing   the  acts  complained  of, 

and  spending  large  sums  of  money  in  completing  them,  consti- 
tute no  defense  to  an  action  for  an  injunction,  no  matter  how 
long  continued,  unless  accompanied  by  circumstances  amounting 
to    an    estoppel.3       But,  as  previously  stated,    where    there    is   a 

Aylett  7'.  King,  n  I.ri^h  (Va.)  486;  Baker  v.  Morris,  10  id.  284;  Glenn  '.  Hebb, 
12  G.  &  J.  (Mil.)  271.  Where  a  surety  who,  six  years  after  ihe  death  <>f  his 
co-surety,  paid  (he  debt,  and  nearly  two  years  afterwards  demanded  contribu- 
tion of  the  administrator  of  his  co-surety,  it  was  held  that  his  claim  was  not 
barred  as  tin-  administrator  had  made  no  payments  during  that  lime  except  to 
himself,  so  that  no  injury  could  result  to  the  estate  from  the  delay.  Hurrows 
V.  M'Whann,  1   DesaUB.  (S.  C.)  409.      So  where  a  judgment  creditor  allowed  the 

judgment  to  lit-  dormant  for  ten  years,  and  then  revived  it  by  scire /acias,  it 

was  held  that  lapse  of  time  was  no  bar  to  a  bill  filed  by  the  judgment  del-tor  for 
relief  against  the  judgment.  Hill  -'.  Jones,  2  Dev.  (N.  C.)  Ch.  101.  Sec  also 
Lewis  .".  Brooks,  6  Yerg.  (Tenn.)  167. 

1  Kinna  V,  Smith,  3  N.  J.  Eq,   i.\. 

'  Atkinson    -■.    Robinson,   0    Leigh  (Va.)  393.      Sec   Carrulhers   :•.    Trustees  of 

Lexington,  12  Leigh  (Va.)  616;  Ormsby  v.  Vt.  Mining  Co.,  56  N.  Y.  623. 

'Ibid.  It  was  held,  is  Haight  t.  l'rice,  21  N.  Y.  240,  that  no  acquiescence 
short  oi  twenty  years  repels  the  presumption  that  the  diversion  of  a  water- 
course  was  in  hostility  to  the  rights  of  tin-  riparian  proprietors,  or  authorizes 
the  presumption  either  of  a  grant  or  of  license.     In  Campbell  v.  Seaman,  63 

N.  Y.  568,  it   Was  held  I  hat  acquiescence  short  of  twenty  years  COllld   not  bar  one 

(,;)   N'orris   ;.    Haggln,   I36  I1.  S.  386;      bv  statute  the  same  limitation  as  to  ac- 

I  .ill  m.  1  n  .      Mi  1   11   I  I     R,  (  0.,  1  '  1    N.  Y .      t  ions  prevails   in  courts  of  equity  •'■.  .11 

1  ii|.     in  ;n  tions  .11  law  in  reference  to  law,   the    doctrine    ol    stale  demand, 

which   lion-  Is  an  r  x  pi  r  ■■.  statute  of  being  an  equitable  one,  does  not  apply 

limitations,  the  doctrine  of  la<  hes  does  to  cases  when-  both  parties  claim  land 

noi  apply,     Broadway   National  Bank  under    a   purely   legal   title.     Kills  p, 

v.  Makn,   170  Mass    194,  297;  Wilson  Smith,  112  Ga.  480. 

v.  Nichols,  72  Conn.   173.      And    where 


§  6o.]  EQUITABLE   ACTIONS.  151 

reasonable  excuse  for  delay,  length  of  time  does  not  defeat 
equitable  relief.1  Thus,  where  a  wife  married  her  husband  in 
her  infancy,  but  immediately  on  his  death  asserted  her  rights  by 
suit,  the  court  held  that,  although  the  bill  was  not  brought  until 
thirty-five  years  after  the  cause  of  her  complaint  accrued,  her 
demand  was  not  stale.2     Lapse  of  time,  in  equity,  is  permitted 

from  complaining  of  a  nuisance,  unless  his  conduct  has  been  such  as  1o  estop 
him.  *  *  *  In  New  York  Rubber  Co.  v.  Rothery,  107  N.  Y.  310,  where  the 
defendant  had  built  expensive  structures  for  manufacturing  purposes,  and 
diverted  the  water  from  a  stream  adjoining  plaintiff's  premises  for  the  purpose 
<of  supplying  powet.  to  his  machinery,  and  it  was  claimed  that  the  plaintiff,  by 
her  silence  during  the  period  when  this  work  was  going  on,  was  barred  of  her 
action  for  damages.  Peckham,  J.,  says.  "  In  this  there  was  no  element  of  an 
estoppel.  To  constitute  it,  the  person  sought  to  be  estopped  must  do  some  act, 
or  make  some  admission,  with  an  intention  of  influencing  the  conduct  of 
another,  or  that  he  had  reason  to  believe  would  influence  his  conduct,  and  which 
act  or  omission  is  inconsistent  with  the  claim  he  proposes  now  to  make.  The 
other  party,  too.  must  have  acted  upon  the  strength  of  such  admission  or  con- 
duct."    See  also  McMurray  v.  McMurray,  66  N.  Y.  176. 

1  2  Pom.  Eq.  Jur.,  §  817:  Bigelow,  Estoppel,  p.  476.  The  same  general  prin- 
ciple has  also  been  held  in  England.  See  Fullwood  v.  Fullwood,  9  Ch.  D. 
176;  Atty.-Gen.  v.  Eastlake,  11  Hare,  205;  Re  Maddever,  27  Ch.  D.  523-  Menen- 
dez  v.  Holt,  128  U.  S.  523.  "  That,  as  the  plaintiff  was  coming  to  enforce  a 
legal  right,  his  mere  delay  to  take  proceedings  was  no  defense,  as  it  had 
not  continued  long  enough  to  bar  his  legal  rights;  the  case  standing  on  a 
different  footing  from  a  suit  to  set  aside,  on  equitable  grounds,  a  deed  which 
was  valid  at  law."  The  Supreme  Court  of  the  United  States  has  also  laid  down 
the  same  rule  in  a  recent  case,  where  Chief  Justice  Fuller,  writing  for  the  court, 
siys:  "  Mere  delays  or  acquiescence  cannot  defeat  the  remedy  by  injunction 
in  support  of  the  legal  right,  unless  it  has  been  continued  so  long  and  under 
such  circumstances  as  to  defeat  the  right  itself.  Hence,  upon  an  application  to 
stay  waste,  relief  will  not  be  refused  on  the  ground  that,  as  the  defendant  had 
been  allowed  to  cut  down  half  the  trees  upon  the  complainant's  land,  he  had 
acquired,  by  that  negligence,  the  right  to  cut  down  the  remainder."  Laches  is 
to  be  determined  in  the  discretion  of  the  court,  upon  all  of  the  circumstances  of 
the  case.  Fullwood  v.  Fullwood,  supra;  Calhoun  v.  Millard,  121  N.  Y.  82; 
Rayner  v.  Pearsall,  3  Johns.  Ch.  (N.  Y.)  578;  Atwater  v.  Fowler,  r  Edw.  Ch. 
(M.  Y.)  420.  Unjustifiable  delay  in  one  case  may  be  reasonable  in  another,  and 
the  fact  that  a  structure  is  made  permanent  constitutes  no  defense  to  the  action. 
Krehl  v.  Burrell,  7  Ch.  D.  551,  and  11  id.  146. 

2  Tate  v.  Greenlee,  2  Hawks  (N.  C.)  486.  See  also  Falls  v.  Torrence,  id.  490. 
In  Balkham  v.  Woodstock  Iron  Co.,  43  Fed.  Rep.  648,  it  was  held  that  one  who 
holds  lands  under  a  defective  legal  title,  but  with  an  equitable  right  to  the  prop- 
erty, is  not  guilty  of  laches  for  delay  in  going  into  a  court  of  equity  to  perfect 
his  title.  Balkham  v.  Woodstock  Iron  Co.,  43  Fed.  Rep.  648;  Parker  v.  Shan- 
non, 137  III.  376;  Coffee  v.  Emigh,  15  Col.  184;  White  v.  Patterson,  139  Penn. 
St.  429.  A  person  who,  without  right,  enters  and  occupies  the  land  of  another, 
•cannot  claim,  by  reason  of  anything  he  does  upon  it,  and  the  owner's  delay  to 


I52  STATUTES   OF   LIMITATION.  [CHAP.   VI. 

to  defeat,  an  acknowledged  right  only  on  the  ground  of  raising  a 

oust  him  for  a  less  time  than  the  statutory  period  of  limitation,  estops  the 
owner  from  seeking  a  remedy  against  him.  Wayzata  v.  Great  Northern  Ry 
Co.,  50  Minn.  438.  A  suit  to  set  aside  the  defendant's  title  to  land,  and  estab- 
lish title  in  the  plaintiffs,  brought  twenty-five  years  after  the  wrongful  transfer 
complained  of,  and  twenty  years  after  knowledge  of  the  wrong  by  the  party 
under  whom  the  plaintiffs  claim,  when  the  panies  to  such  transfer  are  dead 
and  the  land  has  increased  in  value,  and  the  defendants,  who  have  occupied  the 
land,  were  not  parties  to  or  cognizant  of  the  wrong,  is  barred  for  laches. 
Underwood  v.  Dugan,  139  U.  S.  380.  An  unexplained  delay  of  a  year  and  a 
half  in  bringing  an  action  to  set  aside  an  auction  sale  of  lands  on  the  ground  of 
fraud  and  collusion  to  prevent  competition  in  bidding,  is  unreasonable  and  fatal 
to  the  action,  although  the  plaintiff  avers  that  he  had  no  knowledge  of  the  fraud 
at  the  lime  of  the  sale.  Hammond  v.  Wallace,  85  Cal.  522.  One  who  has 
waited  until  the  claims  for  the  payment  of  which  his  ancestor's  real  estale  was 
sold,  have  become  barred  by  the  stalute  of  limitations,  and  refuses  to  state- 
when  he  became  informed  of  irregularities  upon  the  sale  of  the  property  to  pay 
them,  cannot  maintain  a  suit  in  equity  to  set  aside  such  sale.  Murphy  v.  De 
France,  101  Mo.  151,  and  105  Mo.  53,  affirmed  on  rehearing  in  16  S.  W.  861. 
A  suit  to  set  aside  the  sale  of  a  land  certificate,  brought  nearly  thirteen  years  — 
(more  than  the  longest  State  limitation)  —  after  the  sale,  where  the  value  of  the 
land  located  thereunder  has  largely  increased,  and  parties  interested  and  wit- 
nesses have  died,  and  no  person  now  interested  in  the  land  is  implicaled  in  the 
fraud  alleged  as  the  ground  of  relief,  is  barred  on  account  of  laches.  Hanner 
v.  Moulton,  138  U.  S.  486.  Delay  by  the  complainant  in  the  enforcement  of 
remedies,  involving  a  lapse  of  time  during  which  conditions  have  been  changed 
that  cannot  be  reinstated,  money  has  been  expended  in  improvement  of  prop- 
erty, parties  and  witnesses  have  died,  and  indemnity  has  been  imperilled  or 
lost,  is  ground  on  which  equity  will  withhold  relief.  De  Grauw  v.  Median,  48 
N.  J.  Eq.  219.  Equity  will  not,  after  the  statute  of  limitations  has  run  against 
an  action  at  law  for  contribution,  relieve  an  heir  who  paid  mortgages  on  the 
entire  property  without  taking  an  assignment  thereof  and  suing  the  co-heirs  for 
contribution.  Rowden  v.  Murphy,  20  All.  (NT.  J.)  379.  In  Missouri,  the  statute 
which  bars  actions  at  law,  bars  also  proceedings  in  equity,  except  those  which 
the  statute  expressly  excepts;  and  courts  cannot  extend  those  exceptions  so  as 
to  embrace  cases  not  within  the  specific  exceptions  enumerated  in  the  statute 
itself.  Hoester  v.  Sammelmann,  101  Mo.  619.  In  Bushnell  v.  Bushnell,  77 
Wis.  435,  it  was  held  that  an  action  by  a  surety  who  has  paid  more  than  his 
proportion  of  the  debt,  against  his  co-surety  for  contribution,  is  an  action  at  law 
and  governed  by  the  statute  of  limitations  applicable  to  such  actions,  and  is  noi 
brought  within  the  statute  applicable  to  equitable  actions  by  the  fact  that  an 
equitable  action  may  be  maintained  for  contribution  in  a  proper  case.  Parties 
ignorant  of  their  rights  cannot  be  charges  with  laches,  liannon  v.  Hounihan, 
85  Va.  429.  Laches  is  not  attributable  to  an  infant,  the  law  assuming  that  he 
was  ignorant  of  his  rights  during  his  minority.  Putnam  v.  Tinkler,  83  Mich. 
628;  Thurston  v.  Puce,  61  id.  292;  Spencer  v.  lennings,  131;  Penn.  198.  The 
equitable  principle  of  refusing  relief  upon  stale  claims  may  apply  to  a  proceed- 
ing in  equity  against  directors  of  a  national  bank,  although  there  is  no  statutory 
provision    which    would   apply    to  an   action  at  law  in  such  a  case.     Welles  v. 


§  Co.]  EQUITABLE   ACTIONS.  1 53 

presumption  that  the  right  has  been  abandoned,   and  this  pre- 

Graves,  41  Fed.  Rep.  459.  The  doctrine  of  stale  demands  applies  even  where 
a  trust  be  involved.  Sanchez  v.  Dow,  23  Fla.  445.  The  general  rule  in  respect 
to  express  trusts,  that  where  the  trust  relation  has  been  repudiated,  or  the  acts 
of  the  parlies  or  other  circumstances  give  rise  to  presumptions  unfavorable  to 
its  continuance,  a  court  of  equity  will  refuse  relief  on  the  ground  of  lapse  of 
time,  applies  with  greater  force  to  a  resulting  trust.  De  Mares  v.  Gilpin,  15 
Col.  6.  As  a  rule  cases  of  trust  constitute  an  exception  to  the  rule  as  to  laches 
only  so  long  as  the  relation  continues.  Clark  v.  Clough,  65  N.  H.  43.  Upon  a 
patent  being  issued  to  a  headright  claimant  of  lands,  he  is  invested  with  the 
legal  title  in  trust  and  for  the  benefit  of  one  to  whom  he  has  previously  conveyed 
the  lands;  and  where  the  grantor  has  done  nothing  to  repudiate  the  trust,  the 
doctrine  of  laches  or  stale  claim  does  not  apply.  Robertson  v.  Du  Bose,  76 
Texas,  1.  Where  property  held  in  trust  for  one  for  life  with  remainder  to 
others,  is  sold  in  a  proceeding  to  which  the  trustee  and  the  life  tenant  are 
parties,  the  remaindermen  have  no  right  to  raise  any  objection  until  the  death 
of  the  life  tenant;  and  their  failure  to  object  before  that  time  will  not  debar 
them  from  relief  on  the  ground  of  laches.  Covar  v.  Cantelou,  25  S.  C.  35.  The 
general  government  may  be  barred  from  maintaining  a  suit  on  account  of 
laches,  where  it  would  be  inequitable  as  between  man  and  man,  in  their  deal- 
ing with  each  other,  to  permit  the  suit.  United  States  v.  Dalles  Military  Road 
Co.,  41  Fed.  Rep.  493.  A  claim  of  the  United  States  to  forfeit  a  grant  of  lands 
for  non-performance  of  conditions,  is  defeated  as  a  stale  claim  by  the  lapse  of 
eighteen  years  after  the  time  for  performance  before  the  commencement  of 
suit.  United  States  v.  Wallamet  V.  &  C.  M.  Wagon  Road  Co.,  42  Fed.  Rep. 
351.  But  in  Redfield  v.  Parks,  132  U.  S.  239,  where  a  contrary  doctrine  is  held, 
the  defense  of  stale  claims  is  held  not  available  to  persons  in  possession  of 
lands  without  title.  Baker  v.  McFarland,  77  Tex.  294.  The  maker  of  a  trust 
deed  is  barred  by  laches  from  maintaining  a  suit  to  reform  it  forty  years  after 
it  was  made,  and  nearly  thirteen  years  after  realizing  its  character,  during 
which  time  all  the  parties  concerned  were  growing  old,  and  she  knew  the  testi- 
mony to  support  it'or  impeach  it  must  soon  be  lost.  Van  Houten  v.  Van  Winkle, 
46  N.  J.  Eq.  380.  So  in  a  case  of  fraud  upon  the  part  of  an  administrator,  in 
which  each  of  the  defendants  participated,  a  court  of  equity  should  be  slow  in 
denying  relief  upon  the  mere  ground  of  laches  in  bringing  suit.  Bryan  v. 
Kales,  134  U.  S.  126.  Since  an  action  to  enforce  a  lien  on  land  in  the  hands  of 
a  third  person  a  note  given  for  the  purchase  price  thereof,  is  not  barred  until 
after  the  expiration  of  fifteen  years,  the  plaintiff'  s  failure  to  sue  until  after 
thirteen  years  from  the  maturity  of  the  note  and  the  time  it  was  assigned  to 
him,  during  which  time  the  maker  was  solvent,  does  not  preclude  a  recovery 
on  the  ground  of  laches.  Lucy  v.  Hopkins  (Ky.),  13  S.  W.  51S.  In  the  absence 
of  an  express  contract  or  charter  providing  that  the  seat  of  a  college  shall  not 
be  removed,  the  validity  of  a  statute  authorizing  a  removal  cannot  be  attacked 
after  an  acquiescence  of  twenty-five  years,  on  the  ground  that  it  impairs  the 
obligations  of  a  contract.  Bryan  v.  Board  of  Education,  90  Ky.  322.  Five 
years'  delay  in  bringing  a  suit  to  cancel  a  deed,  which  is  then  allowed  to  drag 
for  two  years,  and  is  then  dismissed,  followed  by  ten  years  of  absolute  inaction, 
during  which  time  the  property  has  doubled  or  perhaps  quadrupled  in  value,  is 
a  bar  to  a  second  suit.     Henry  v.  Suttle,  42  Fed.  Rep.  91.     A  person  cannot 


154  STATUTES   OF   LIMITATION.  [CHAP.   VI. 

sumption  will  never  prevail  against  opposing  facts  and  circum- 
stances outweighing  it.1 

Where  the  existence  of  a  trust  has  been  fraudulently  concealed 
for  thirty-six  years,  a  delay  of  six  months  before  beginning  a 
suit  after  the  discovery  of  the  fraud  was  held  not  to  amount  to 
laches  which  would  prevent  a  court  of  equity  from  giving  relief.2 
Nor  generally  will  relief  be  refused  on  the  ground  of  laches 
where  the  party  had  no  knowledge  of  the  existence  of  the  fact 
that  the  trus.ee  was  disposed  to  deny  the  trust  relation,  and 
claim  adversely,3  provided  the  facts  entitled  them  to  relief,  (a) 
But  relief  will  be  denied  where  the  facts  could  have  been  discovered 
by  the  exercise  of  reasonable  diligence.  Thus,  a  delay  for  many 
years  on  the  part  of  the  stockholders  and  officers  of  a  lessee  rail- 
road company  in  objecting  that  its  officers  acted  in  bad  faith  in 
taking  the  lease  at  an  excessive  rent  was  held  to  be  excusable  on 
the  ground  that  the  amount  was  of  no  consequence  to  them  so 
long  as  an  assignee  of  the  lease  for  a  part  of  the  term  paid  it  as 
he  had  agreed.4 

avoid  a  deed  for  duress  when  under  arrest  for  larceny,  where  he  neglects  lo  bring 
the  suit  for  nearly  three  years  and  until  after  the  prosecution  against  him  for 
larceny  is  barred,  during  which  time  the  property  is  sold  to  innocent  purchasers, 
unless  the  delay  is  satisfactorily  explained.     Eberstein   v    Willets,  134  111.  101. 

1  Nelson  v.  Carrington,  4  Munf.  (Va.)  332;  Reardon  v.  Leary,  1  Litt.  (Ky.)  53; 
Burkhead  v.  Coulson,  2  D.  &  B.  (N.  C.)  Ch.  77.  The  poverty  of  the  plainiiff  is 
not  an  excuse  for  delay.  Locke  v.  Armstrong,  id.  147;  Perry  v.  Craig,  3  Mo. 
316.     But  see  Mason  v.  Crosby,  1  Wood.  &  M.  341. 

2  Middaugh  v.  Fox,  135  111.  344. 

3  Roby  v.  Colehour,  135  111.  300. 

4Jessup   v.    Illinois,   etc.,    R.    Co.,  43   Fed.  Rep.  483.     See  also  Van  Vleet  v. 

(a)  In    cases   of   actual    fraud   or  of  Whenever  the  property,  such  as  min- 

want  of  knowledge  of  the  facts,  the  law  ing  property,  is  speculative  and  liable 

is  tolerant  of  delay;  but  when  the  cir-  to   large   and   constant   fluctuations  in 

cumstances  of  the  case  negative  this  value,    serious    delay,    vacillation     or 

view,  and   the  transaction  is  sought  to  silence,    on    the    part   of    a    party  who 

be  impugned  only  by  reason  of  confi-  claims  fraud  or  mistake,  will  make  him 

d-mtial  relations  between  the  parties,  a  as  conclusively  bound   by  the  contract 

cestui  que  trust  who  has  ample  notice  as  if  the  fraud   or   mistake  had  not  oc- 

of  the  facts,  should  not  wait  and  make  curred.     Grymes   v.    Sanders,  93  U.  S. 

his  aclion  to  set  the  transaction  aside  55,  62;  McLean  v.  Clapp,  141  U.S.  429, 

depend   upon  the    question   whether  it  432;  Great  West  Min.  Co.  v.  Woodmas 

is   likdy  to    prove  a  profitable    specu-  of  Alston  Min.  Co.,  12  Col.  46.     An  es- 

1  Ltion,  thereby  throwing  upon  the  other  toppel  in  pais  may,  in  this  way,  arise 
party  losses  caused  by  a  decline  in  from  silence  when  there  is  a  duty  to 
value,  and   denying  him  the  benefit  of  speak,  and    the  other  party  is  injured 

iSSlble    rise.      Hammond    v.    Hop-  thereby,  even   though   no   fraud  is  de- 
kins.  [43  U.    S.   224;    Hoy!    v.    Latham,  signed.     Ibid.;  Thompson  v.  Simpson, 
67.     See  In  re  Friend,  [1897]  128  N.  Y.  270,  289. 

2  Ch.  421. 


§  6o.]  EQUITABLE   ACTIONS.  155 

A  surety  is  not  guilty  of  laches  in  instituting  a  suit  to  have  a 
bond  canceled  or  reformed  which,  by  mutual  mistake,  made  him 
personally  liable  for  the  amount  of  a  judgment,  until  an  attempt 
is  made  to  hold  him  personally  liable  for  the  amount  of  the  judg- 
ment on  the  bond.1 

The  right  to  enforce  an  obligation  for  a  life  support  is  not 
barred  by  the  mere  neglect  for  any  length  of  time  to  take  the 
benefit  of  the  provision.2  So  where  the  pledgee  of  property  had 
been  guilty  of  a  breach  of  trust,  and  held  the  property,  which 
had  largely  increased  in  value,  and  the  pledgor  had  previously 
instituted  a  suit  to  redeem,  which  was  decided  against  him,  it 
was  held  that  a  delay  of  more  than  five  years  in  bringing  an 
action  to  redeem  the  pledged  property  was  not  such  laches  as 
would  deprive  him  of  equitable  relief.3 

Where  a  party  has  been  unreasonably  dilatory  or  negligent  in 
enforcing  his  rights,  and  shows  no  excuse  for  such  laches  in 
asserting  them,  courts  of  equity  uniformly  decline-  to  assist  him 
in  their  enforcement.4 

Equity  withholds  relief  in  all  cases  where  the  party  seeking  it 
has  delayed  for  an  unreasonable  time  in  asserting  his  claim,  and 
the  proper  rule  of  pleading  would  seem  to  be  that  when  the  case 
stated  by  the  bill  appears  to  be  one  in  which  a  court  of  equity 

Sledge,  45  Fed.  Rep.  743,  where  it  was  held  that  reformation  of  an  entry  in 
books  of  account  will  not  be  decreed  on  a  bill  filed  nine  years  after  the  transac- 
tion where  the  complainant  could  have  known,  and  was  presumed  to  have 
known,  of  the  entry,  and  no  explanation  is  given  for  the  delay. 

1  Griswold  v.  Hazard,  141  U    S.  260. 

5  Coleman  v.  Whitney,  62  Vt.  123. 

3  Gilmer  v.  Morris,  43  Fed.  Rep.  456. 

*In  Smith  v.  Clay,  3  Bro.  Ch.  640,  n.  Lord  Camden  said:  "A  court  of 
equity  has  always  refused  its  aid  to  stale  demands  where  the  party  has  slept 
upon  his  rights  and  acquiesced  for  a  great  length  of  time.  Nothing  can  call 
forth  this  court  into  activity  but  conscience,  good  faith,  and  reasonable  diligence. 
Where  these  are  wanting  the  court  is  passive  and  does  nothing.  Laches  and 
neglect  are  always  discountenanced,  and  therefore,  from  the  beginning  of  this 
jurisdiction  there  was  always  a  limitation  to  suits  in  this  court.  And  where 
the  appeal  upon  its  face  shows  that  the  plaintiff  is  not  entitled  to  relief  by  rea- 
son of  lapse  of  time  and  of  his  own  laches,  the  objection  may  be  taken  by 
demurrer."  See  Hume  v.  Beale,  17  Wall,  (U.  S.)  336;  Knight  v.  Taylor,  1  How. 
{IT.  S.)  161;  Bowman  v.  Wathen,  1  id.  189:  Marsh  v.  Whitmore,  21  Wall.  (U.  S.) 
178;  Sullivan  v.  Portland  &  Kennebec  R.  Co.,  94  U.  S.  806;  Godden  v.  Kim- 
mell,  99  U.  S.  201;  Bright  v.  Legerton,  29  Beav.  60;  Badger  v.  Badger,  2  Wall. 
S7;  Lansdale  v.  Smith,  106  U.  S.  391;  Bank  v.  Carpenter,  101  U.  S.  567;  Max- 
well v.  Kennedy,  8  How.  210. 


I$6  STATUTES   OF   LIMITATION.  [CHAP.   VI. 

will  refuse  its  aid,  the  defendant  should  be  permitted  to  resist  it 
by  demurrer.1 

SEC.  61.  Effect  of  Aquiescence.  —  Courts  of  equity  will  also 
refuse  to  grant  relief  where  a  person  has  acquiesced  in  the  exer- 
cise of  a  right  by  another,  under  such  circumstances  that  he  can- 
not equitably  dispute  the  right,  although  his  acquiescence  has  not 
existed  for  the  statutory  period.      Lord  Eldon  2  gives  expression 

1  Lansdale  v.  Smith,  106  U.  S.  391. 

'  Dann  v.  Spurrier,  7  Ves.  231  The  delay  of  a  partv,  apprised  of  his  right, 
and  of  its  infringement,  to  assert  il,  for  a  period  sufficient  to  bar  an  action 
at  law,  founded  on  the  same  right,  will  preclude  him  from  relief  in  equity, 
especially  if  by  such  delay  he  has  avoided  a  risk  which  otherwise  he  must  have 
shared  with  the  adverse  party.  Banks  v.  Judah,  8  Conn.  145.  When  a  party 
has  been  guilty  of  unreasonable  laches  and  acquiescence  in  seeking  relief  in  a 
court  of  equity,  he  is  precluded  from  any  remedy  in  that  jurisdiction.  Smith 
v.  Clay,  2  Ambl.  645;  Calhoun  v.  Millard,  121  N.  Y.  69;  Lyon  v.  Park,  m  N.  Y. 
350;  Coit  v.  Campbell,  82  N.  Y.  509;  Alvord  v.  Syracuse  Savings  Bank,  98  N.  Y. 
599;  Andrews  v.  Farmers  L.  &  T.  Co.,  22  Wis.  298;  Meredith  v.  Sayre,  32  N.  J. 
Eq.  557;  Att.-Gen.  v.  Del.  &  B.  R.  R.  Co.,  27  id.  1 ;  Att.-Gen.  v.  N.  Y.  &  L.  B.  R. 
R.  Co.,  24  id.  49;  Freemont  Ferry  v.  Dodge  Co.  Con/rs,  6  Neb.  18;  Abendroth 
v.  Manhattan  R.  Co.,  122  N.  Y.  1;  Hentz  v.  Long  Island  R.  Co.,  13  Barb.  646; 
Ninth  Ave.  R.  Co.  v.  New  York  El.  R.  Co.,  3  Abb.  N.  C.  (N.  Y.)  358;  Kincaid 
v.  Indianapolis  Nat.  Gas  Co.,  124  Ind.  577;  Western  Union  Tel.  Co.  v.  Judkins, 
75  Ala.  428;  Midland  R.  Co.  v.  Smith,  113  Ind.  233;  Greenhalgh  v.  Manchester 
&  B.  R.  Co.,  3  Myl.  &  C.  784;  Wood  v.  Charing  Cross  R.  Co.,  33  Beav.  290; 
Bigelow  v.  Los  Angeles,  85  Cal.  614;  Pottsgrove  Tp.  v.  Pennsylvania  &  S.  V. 
R.  Co.,  2  Monlg.  Co.  L.  Rep.  133;  Pennsylvania  Co.  v.  Piatt,  47  Ohio  St.  366; 
Pensacola  &  A.  R.  Co.  v.  Hackson,  21  Fla.  146;  Logansport  v.  Uhl,  99  Ind.  53 r ; 
Goodwin  v.  Cincinnati  «X  W.  W.  Canal  Co.,  18  Ohio  St.  169;  Meredith  v.  Sayre, 
32  N.  J.  Eq.  557;  Traphagen  v.  Jersey  City,  29  id.  206,  Pickert  v.  Ridgefield 
Park  R.  Co.,  25  id.  316;  Erie  R.  Co.  v.  Del.  L.  &  W.  R.  Co  ,  21  id.  283;  Morris 
&  E.  R.  Co.  v.  Prudden,  20  id.  530;  Baltimore  &  O.  R.  R.  Co.  v.  Strauss,  37 
Md.  237;  Spencer  v.  Falls  Tp.  R.  Co.,  70  id.  136:  Bassett  v.  Salisbury  Mfg.  Co., 
47  N.  H.  426;  Osborne  v.  Mo.  Pac.  R.  R.  Co.,  37  Fed.  Rep.  830.  In  New  York 
it  is  held  that  a  mere  failure  to  institute  proceedings  to  restrain  or  prevent  the 
construction  or  continued  operation  of  a  railroad,  cannot  deprive  an  owner  of 
the  constitutional  right  to  recover  compensation  for  the  taking  of  his  property, 
and  to  enjoin  the  continuance  of  the  wrongful  act  until  such  compensation  shall 
be  made  unless  the  legal  right  is  barred  by  the  statute  of  limitations,  or  the 
defendant  has  in  some  legal  manner  acquired  a  title  to  the  property  taken,  or 
unless  the  owner  has  by  his  acquiescence  become  estopped  from  asserting  his 
claim.  Knox  v.  Manhattan  El.  R.  Co.,  58  Hun  (N.  Y.)  517;  Abendroth  v.  Man- 
hatlan  El.  R.  Co.,  122  N.  Y.  1;  Ode  v.  Manhattan  El.  R.  Co.,  56  Ilun  (N.  Y.) 
[99;  Mi  Murray  v.  McMurray,  66  N.  Y.  176;  Powers  v.  Manhattan  El.  R.  Co., 
120  N.  Y.  178;  Chapman  v.  Rochester,  110N.  Y.  273;  McLean  v.  Fleming,  96  U.  S. 
245.  In  Mcnendcz  v.  Holt,  128  U.  S.  514,  Fuller,  C.  J.,  says:  "  Mere  delay  or 
acquiescence  cannot  defeat  the  remedy  by  injunction   in  support  of  the  legal 


§6l.]  EQUITABLE   ACTIONS.  157 

to  the  rule  in  such  cases  thus:  "  This  court,"  says  Lord  Eldon, 
"  will  not  permit  a  man  knowingly,  though  but  passively,  to 
encourage  another  to  lay  out  money  under  an  erroneous  opinion 
of  title;  and  the  circumstance  of  looking  on  is  in  many  cases  as 
strong  as  using  terms  of  encouragement,  a  lessor  knowing  and 
permitting  those  acts  which  the  lessee  would  not  have  done,  and 
the  other  must  conceive  he  would  not  have  done,  but  upon  an 
expectation  that  the  lessor  would  not  throw  any  objection  in  the 
way  of  his  enjoyment."1  Lord  Cottenham  has  thus  defined 
"  acquiescence:  "  "  If  a  party  having  a  right  stands  by  and  sees 
another  dealing  with  the  property  in  a  manner  inconsistent  with 
that  right,  and  makes  no  objection  while  the  right  is  in  progress, 
he  cannot  afterwards  complain."2  But  a  person  who  has  not 
complete  knowledge  of  the  facts  cannot  be  said  to  acquiesce.3 
"  I  do  not  see,"  says  Turner,  L.  J.,4  how  a  man  can  be  said  to 
have  acquiesced  in  that  he  does  not  know;  and  in  cases  of  this 
sort  I  think  that  acquiescence  implies  full  knowledge,  for  I  take 

right  unless  it  has  been  continued  so  long  and  under  such  circumstances  as  to 
defeat,  the  right  itself."  "  So  far  as  the  act  complained  of  is  completed,  acquies- 
cence may  defeat  the  remedy  on  the  principle  applicable  when  action  is  taken  on 
the  strength  of  encouragement  to  do  it,  but  so  far  as  the  act  is  in  progress  and  lies 
in  the  future,  the  right  to  the  intervention  of  equity  is  not  generally  lost  by  pre- 
vious delay  in  respect  to  which  the  elements  of  an  estoppel  could  rarely  arise. 
At  the  same  time  as  it  is  in  the  exercise  of  discretionary  jurisdiction  that  the 
doctrine  of  reasonable  diligence  is  applied,  and  those  who  seek  equity  must  do 
it.  A  court  might  hesitate  as  to  the  measure  of  relief  where  the  use  by  others 
for  a  long  period,  under  assumed  permission  of  the  owner,  had  largely  enhanced 
the  reputation  of  a  particular  brand  "  Acquiescence  to  avail  must  be  such  as 
creates  a  new  right  in  the  defendant.  Rodgers  ;•.  Nowill,  3  De  Gex,  M.  &  G. 
614.  Where  consent  by  the  owner  to  the  use  of  his  trade-maric  by  another  is 
to  be  inferred  by  his  knowledge  and  silence  merely,  it  lasts  no  longer  than  the 
silence  from  which  it  springs.  It  is  in  reality  no  more  than  a  revocable  license. 
Amoskeag  Mfg.  Co.  v.  Spear.  2  Sandf.  (N.  Y.)  599;  Julien  v.  Hoosier  Drill  Co., 
78  Ind.  408;  Taylor  v.  Carpenter,  3  Story  (U.  S.)  458. 

1  See  Dean  :*.  Spurrier,  7  Ves.  231;   Youst  v.  Martin,  3  S.  &  R.  (Penn.)  423. 

5  In  Leeds  v.  Amherst,  2  Phil.  123. 

3  Marker  v.  Marker,  9  Hare,  16.  Laches  cannot  be  imputed,  where  the  party 
had  no  knowledge  of  the  facts  which  constituted  his  ground  of  aciion,  and  this 
is  the  case,  although  the  party  might  have  ascertained  the  facts  by  due  inquiry, 
if  by  any  act  of  the  defendant,  or  the  circumstances,  he  has  reasonably  been 
lulled  into  security.  If  there  has  been  gross  laches,  the  court  should  deny 
relief.     Coon  v.  Seymour,  71  Wis.  340;  Bausman  v.  Kelly,  38  Minn.  197. 

4  Cooper  v.  Greene,  3  De  G.  F.  &  J.  58.  See  also  Hall  v.  Noyes,  cited  3  Ves. 
748;  Selsey  v.  Rhoades,  1  Bligh.  3  N.  S.,  1;  Anon,  cited  6  Vet  632;  Rudd  v. 
Sewell,  4  Jur.  8S2. 


158  STATUTES   OF   LIMITATION.  [CHAP.  VI. 

the  rule  to  be  quite  settled  that  a  cestui  que  trust  cannot  be 
bound  by  acquiescence,  unless  he  has  been  fully  informed  of  his 
rights  and  of  all  the  material  facts  and  circumstances  of  the  case." 

Sec.  62.  Distinction  between  Laches  and  Acquiescence. —  In 
strictness  laches  import  a  merely  passive,  while  acquiescence 
implies  active,  assent;  and  while,  where  there  is  no  statutory 
limitation  applicable  to  the  case,  courts  of  equity  would  dis- 
courage laches  and  refuse  relief  after  great  and  unexplained  delay, 
yet  where  there  is  such  a  statutory  limitation  they  will  not  antici- 
pate it,  as  they  may  where  acquiescence  has  existed. (a)  Laches 
is,  in  fact,  only  an  inferior  species  of  acquiescence.1  Mere  lapse 
of  time  may,  however,  make  the  reopening  of  a  matter  unreason- 
able.2 Mere  acquiescene  will  not  be  a  bar  in  cases  where  there  is 
an  express  trust.3 

Sec.  6^.  When  Equity  will  supply  Remedy  upon  a  Claim  barred 
by  the  Statute.  —  When  a  party  applies  to  a  court  of  equity  and 
carries  on  an  unfounded  litigation  —  protracted  under  circum- 
stances, and  for  a  length  of  time  which  deprives  his  adversary  of 
his  legal  rights  —  a  substitute  for  the  legal  right  of  which  the 
party  so  prosecuting  an  unfounded  charge  has  deprived  him 
should    be   supplied  and  administered.4     If  a  court  of  equity  can 

1  In  Rochdale  Canal  Co.  v.  King,  2  Sim.  N.  S.  89,  where  Kindersley.V.  C,  said : 
"  Mere  acquiescence  (if  by  acquiescence  is  to  be  understood  only  abstaining 
from  legal  proceedings)  is  unimportant;  where  one  part>  invades  the  rights  of 
another,  that  other  does  not  in  general  deprive  himself  of  the  right  of  seeking 
redress  merely  because  hs  remains  passive;  unless,  indeed,  he  continues  inac- 
tive so  long  as  10  bring  the  case  within  the  purview  of  the  statute  of  limita 
tions."  These  remarks  are  erroneously  attributed  to  Lord  Cranvvorth  by  Lord 
Chelmsford,  in  Archbold  v.  Scully,  9  H.  L.  Cas.  360. 

'Green's  Case,  L.  R.  18  Eq.  428. 

8  Where  trust  property  had  been  improperly  conveyed,  but  not  for  value,  to 
the  predecessor  in  title  of  the  defendant  upwards  of  one  hundred  years  before 
suit,  and  the  plaintiff  had  discovered  the  fact  eighteen  years  before  taking  pro- 
ceedings, it  was  held,  on  demurrer,  that  the  statute  had  no  operation.  Brown 
v.  Redford,  W.  N.  (1874),  p.  124.  See  Campbell  v.  Graham,  1  R.  &  My.  453; 
Pitt  i>.  Dacre,  3  Ch    D.  295;  and  infra,  chapter  on  Trusts. 

*  Pulteney  v.  Warren,  6  Ves.  73;  Bond  v.  Hopkins,  2  Sch.  &  Lef.  630;  Grant 

(a)  "  The  defenses  of  laches  and  ac-  Laches  relates  to  delay  after  the  act  is 

quiescence  are  cognate  but  not  correla-  done,"     Green,  V.  C,  in  Hall  v.  Otter- 

ttve;  the*  b  »th  spring  from  the  cardinal  son,  52  N.  J.  Eq.  522,  534,  which  holds 

rule    lhal  '  he    who  seeks  equity  must  that    mistake,  as  ground    for  a  suit  to 

do    eq  lily.'       Acquiescence,    however,  set  aside  a  deed  of  trust,  being  purely 

I        ierly   speaking,    relates  to  inaction  a  matter  of  equitable  cognizance,  is  not 

during    the     performance    of    an     act.  affected  by  the  statute  of  limitations. 


§63.]  -EQUITABLE   ACTIONS.  159. 

consistently  do  so,  it  will  grant  relief.  But  there  are  limits  even 
to  the  powers  of  a  court  of  equity;  and  in  matters  where  the 
party  has  a  remedy  at  law,  it  has  no  more  power  to  set  aside  the 
statute  than  a  court  of  law  has.  Nor  have  such  courts  the  power 
to  enjoin  a  party  from  setting  up  the  statute  in  a  case  where  he  is 
legally  entitled  to  its  benefits,  and  the  exercise  of  such  authority 
would  be  an  usurpation  of  authority  wholly  unwarranted. 

As  to  the  application  of  the  statute  in  equity  in  cases  involving 
trusts,  see  chapter  on  Trusts. 

v.  Grant,  2  Russ.  598;  East  India  Co.  v.  Campion,  11  Bligh,  158.  Where  a 
defendant  in  a  suit  at  law  has  unjustly  pleaded  the  statute  of  limitations,  equity 
may,  on  that  ground,  refuse  to  the  defendanl,  in  his  defense  to  the  suit,  the 
benefit  of  the  slatute.  Lunn  v.  Johnson,  3  Ired.  (N.  C.)  Ch.  70.  But  in  Walker 
v.  Smith,  8  Yerg.  (Tenn.)  238,  it  was  held  that,  where  a  purely  legal  demand 
has  been  barred  by  lapse  of  time,  a  court  of  equity  has  not  power,  on  account 
of  any  supposed  inequity,  to  enjoin  the  party  from  insisting  on  the  slatute  of 
limitations  in  any  action  brought  for  its  recovery. 


l6o  STATUTES    OF   LIMITATION.  [CHAP.   VII. 


CHAPTER  VII. 
Removal  of  the  Statutory  Bar.     Acknowledgments. 

Sec.  64.   General    Reasons  for  Judicial     Sec.   73.    Failure     to     deny     Liability. 
Exceptions.  Expressions  of  Regret,  etc. 

65.  Historical  View  of  theLaw  re-  74.    Effect  of  Acknowledgment. 

iating  toAcknovvledgments.  75    Offer  to  pay  in  Specific  Prop- 

66.  Acknowledgments  apply  only  erty. 

to    Assumpsit.     Theory   on  76.   Promise    not    to     plead    the 

which  founded.  Statute. 

67.  CrucialTest.    Rule  in  A'Court  77.   Conditional  Acknowledg- 

es Cross.  ment. 

68.  Present  Theory.  78.   Hope  to  pay. 

69.  Express  or  Implied  Refusal  to  79.   By   and    to    whom    must   be 

pay.  made. 

70.  Essential     Requisites    of    an  80.   Offer   to   arbitrate,  Recital  in 

Acknowledgment.  Deeds,  etc. 

71.  Rare  Acknowledgment.  81.    When  Acknowledgment  must 

72.  Promise  to  settle.  be  made. 

Sec.  64.  General  Reasons  for  Judicial  Exceptions.  — The  statute 
of  James,  which  is  the  foundation  of  all  of  our  statutes  of  limita- 
tions, and  which  is  virtually  in  force  in  several  of  the  States,  and 
practically  in  all  of  them  with  some  exceptions,  contained  no  excep- 
tion in  case  of  acknowledgments  of  indebtedness  by  the  debtor, 
yet  at  an  early  day  such  an  exception  was  read  into  the  statute  by 
the  judges,  and  there  is  no  instance  of  judicial  legislation  that  is 
better  sustained  by  both  reason  and  justice  than  this.  The  true 
reason  for  these  exceptions  is  that  the  reason  for  a  statutory  bar 
utterly  fails  when  a  debtor  from  time  to  time  admits  the  exist- 
ence and  justice  of  the  debt,  and  the  courts,  w  thout  intending 
to  thwart,  but  rather  to  give  effect  to,  the  true  intention  of  the 
statutes,  began  at  an  early  day  to  hold  that  where  a  debtor 
expressly  promises  to  pay  a  pre-existing  debt,  or  acknowledges  its 
existence  under  such  circumstances  that  a  promise  to  pay  it  can 
})<■  implied,  the  statute  is  suspended  up  to  that  date,  and  begins 
to  run  anew  from  the  date  of  such  new  promise  or  acknowledg- 
ment. In  other  words,  that  under  the  circumstances  named  the 
debt  is  revived  and  put  on  foot  for  a  new  period  of  life,  coexten- 
sive- with  the  statutory  provision.  In  all  cases,  however,  where 
an  acknowledgment  is  relied  upon  to  renew  a  debt,  it  will  be 
found  that  these  requisites  are  indispensable: 


§  64.]  ACKNOWLEDGMENTS.  l6l 

First.  The  acknowledgment  must  be  in  terms  sufficient  to  war- 
rant the  inference  of  a  promise  to  pay  the  debt; 

Second.   It  must  be  made  to  the  proper  person; 

Third.    By  the  proper  person  ;  and, 

Fourth.  With  the  proper  formalities,  where  any  are  required 
by  statute.  And  in  the  case  of  real  property,  in  order  to  have 
any  effect,  it  must  be  shown  to  have  been  made  before  time  has 
finally  run  in  favor  of  the  person  making  it. 

From  these  rules  it  will  be  seen  that,  whatever  abstruse  theories 
may  formerly  have  existed  in  reference  to  the  principles  upon 
which  these  statutes  are  predicated,  or  in  reference  to  the  pre- 
sumptions arising  therefrom,  it  is  now  well  settled  that  no 
acknowledgment  is  sufficient  to  take  a  case  out  of  the  operation 
of  the  statute,  unless  it  is  of  such  a  character  that  a  new  promise 
sufficient  to  revive  the  debt  can  be  fairly  drawn  therefrom;1  and 

1  Barlow  v.  Bellamy,  7  Vt.  54;  Allcock  v.  Ewen,  2  Hill  (S.  C.)  326;  Sands  v. 
Gelston,  15  Johns.  (N.  Y.)  511;  Cohen  v.  Aubin,  2  Bailey  (S.  C.)  283;  Smallwood 
v.  Smallwood,  2  D.  &  B.  (N.  C.)  330;  Eckert  v.  Wilson,  12  S.  &  R.  (Penn.)  393. 
It  must  be  distinct,  and  without  question  of  its  being  due,  or  an  intimation  that 
it  would  not  be  paid.  Berghaus  v.  Calhoun,  6  Watts  (Penn.)  219;  Gleim  v. 
Rise,  id.  44;  Harrison  v.  Handley,  1  Bibb  (Ky.)  443;  Allen  v.  Webster,  15 
Wend.  (N.  Y.)  284,  Head  v.  Manners,  5  J.  J.  Mar.  (Ky,)  255.  An  acknowledg- 
ment of  the  justice  of  a  claim,  without  anything  more,  is  sufficient  to  remove 
the  statute  bar;  but  if  the  debtor  in  connection  therewith,  says  anything  to 
indicate  that  although  the  claim  is  just,  yet  he  does  not  intend  to  pay  it,  as  "  the 
debt  is  an  honest  one,  but  I  have  paid  it,"  it  is  not  sufficient,  although  the  debt 
has  not  been  paid,  because  no  promise  can  be  implied  upon  which  to  revive  the 
debt.  Bailey  v.  Bailey,  14  S.  &  R.  (Penn.)  195;  Tichenor  v.  Colfax,  4  N.  J.  L. 
153;  Smith  v.  Freel,  Addis.  (Penn.)  291;  Gray  v.  Kernahan,  2  Mill's  Const. 
Ct.  (S.  C.)  65.  But  if,  upon  being  shown  a  note  purporting  to  have  been  exe- 
cuted by  him,  he  denies  his  signature  thereto,  but  says,  "  Prove  that  I  signed 
the  note  and  I  will  pay  it;  "  if  his  signature  is  proved  to  be  genuine,  the  statute 
bar  is  removed,  because  there  is  an  express  promise  to  pay  upon  the  perform- 
ance of  a  condition,  notwithstanding  his  denial.  But  if  a  debtor  denies  the 
debt,  but  says  "  Prove  by  A.  that  I  had  the  timber  and  I  will  pay  for  it;  "  if 
it  is  proved  by  A.  that  he  had  the  timber,  the  the  statute  bar  is  removed;  but 
proof  of  that  fact  by  other  witnesses,  but  not  by  A.,  will  not  remove  the  bar, 
because  there  is  nothing  to  support  the  promise.  Robbins  v.  Otis,  1  Pick. 
{Mass.)  368.  So  where,  upon  being  shown  a  note,  the  debtor  admitted  its 
genuineness,  but  said  he  "  had  not  been  duly  notified  and  was  clear  by  law," 
it  was  held  not  sufficient  to  remove  the  statute  bar,  although  in  fact  he  had  been 
duly  notified,  because  there  is  nothing  upon  which  a  new  promise  can  be  pre- 
dicated. Miller  v.  Lancaster,  4  Me.  159.  So,  where  a  defendant  says,  "  If  I 
■owe  you  anything  I  will  pay  it,  but  I  owe  you  nothing."  Perley  v.  Little,  3 
id.  97.     So  where,  upon  being  shown  a  note,  the  defendant  said,  "  I  don't  think 


l62  STATUTES   OF   LIMITATION.  [CHAP.   VII. 

the  theory  upon  which  the  courts  proceed  is  that  the  old  debt 
forms  a  good  consideration  for  a  new  promise,  either  express  or 
implied,  and  that  any  clear  and  unqualified  admission  of  the  debt 
as  an  existing  liability  carries  with  it  an  implied  promise  to  pay, 
unless  such  inference  is  rebutted  either  by  the  circumstances  or 
the  language  used.1 

father  intended  I  should  pay  the  note;  I  think  I  have  paid  it;  but  I  suppose  I 
must  pay  it,  if  anything  is  due,  and  they  insist  upon  it,  as  father  is  dead." 
Russell  v.  Copp,  5  N.  H.  154.  So  where  the  defendant,  after  admitting  the  debt, 
said  that  "  it  was  not  in  his  power  to  pay  it  at  that  lime,  but  he  hoped  to  see 
the  plaintiff  and  do  something  about  it."  Hancock  v.  Bliss,  7  Wend.  (N.  Y.) 
267.  But  see  Olcott  v.  Scales,  3  Vt.  173.  An  admission  by  the  defendant  after 
a  debt  is  barred,  that  "  it  is  just,  so  far  as  I  know,  but  I  left  it  to  F.,  and  have 
kept  no  account  myself."  also  adding:  that  the  defendants  "were  indebted  to 
him,"  is  not  sufficient.  Tillet  v.  Linsey,  6  }.  J.  Mar.  (Ky.)  337.  "  I  gave  the 
note,  but  it  is  paid,"  New  Orleans,  etc.,  Co.  v.  Harper,  11  La.  Ann.  212;  Dick- 
inson v.  McCamy,  5  Ga.  486,  is  not  sufficient.  In  Pray  v.  Garcelon,  17  Me.  145, 
a  mere  general  admission,  as"  I  owe  him  something,"  without  stating  how 
much  or  what  for,  was  held  insufficient.  To  take  a  case  out  of  the  statute  of 
limitations,  the  acknowledgment  of  indebtedness  proved  must  be  shown  to 
relate  to  the  particular  demand  in  question.  Buckingham  v.  Smith,  23  Conn. 
453.  And  a  naked  admission  of  indebtedness,  without  indicating  the  amount 
or  nature  of  the  debt,  or  a  promise  to  pay  something,  without  any  reference  to 
the  sum  to  be  paid,  or  what  it  is  to  be  paid  for,  is  no  answer  to  the  plea  of  the 
statute.  Shitler  v.  Bremer,  23  Penn.  St.  413.  But  the  question  whether  such 
an  admission  is  sufficient  must  depend  largely  upon  the  circumstances,  Lord  v. 
Harvey,  3  Conn.  370;  and  the  circumstances  attending  what  was  said  must  be 
taken  into  account,  as  they  form  a  part  of  the  res  gestcc.  Whitney  v.  Bigelow, 
4  Pick.  (Mass.)  no.  An  acknowledgment  by  the  defendant  to  a  stranger  that 
he  had  received  the  money  of  the  plaintiff's  testator,  but  that  nobody  could 
prove  it,  with  a  general  statement  that  he  would  "  satisfy  "  the  plaintiff,  is  not 
such  an  acknowledgment  or  promise  to  pay  as  will  answer  the  plea  of  the 
statute  of  limitations.     Zacharias  v.  Zacharias,  23  Penn.  St.  452.(<7). 

1  Harbold  v.  Kuntz,  16  Penn.  St.  210;  Yaw  v.  Kerr,  47  id.  333;  Grant  v.  Ash- 
ley, 12  Ark.  762;  Calks  v.  Weeks,  7  Hill  (N.  Y.)45;  Allison  v.  James,  9  Watts 
(Penn.)  380;  Ash  v.  Patton,  3  S.  &  R.  (Penn.)  300;  Wakeman  v.  Sherman,  9  N.  Y. 
88;  Porter  v.  Hill,  4  Me.  41;  Peteison  v.  Cobb,  4  Fla.  481;  Deshon  v.  Eaton,  4 
Me.  4 r3 ;  Hand  v.  Lee,  4  T.  B.  Mon.  (Ky.)  36;  Gauche  v.  Gondran,  20  La.  Ann. 
156;  Ferguson  v.  Taylor,  Hayw.  (N.  C.)  20.  In  some  of  the  cases  it  is  said  that 
under  the  statute  of  limitations  a  presumption  arises  that  the  defendant,  from 
the  lapse  of  time,  has  lost  the  evidence  which  would  have  availed  him  in  his 
defense  if  he  had  been  seasonably  called  upon  for  payment;  but,  when  this 
presumption  is  rebutted  by  an  acknowledgment  of  the  defendant  within  six 
years,  the  contract  is  not  within  the  intent  of  the  statute.  Baxter  v.  Penniman, 
8  Mass.  133:  Fiske  v.  Needham,  n  id,  452:  Grist  v.  Newman,  2  Bailey  (S.  C> 
92;   M'I.ean    v.    Thorp,   3  Mo.  215;  Gailer  v.  Grinnel,  2  Aik.  (Vt.)  349;   Lyon   v. 

{>i)  Sec  Newbould  v.  Smith,  14  A.  C.  423;    Rogers  v.  Quinn,  26  L.  R.  Ir.  136 


§65. J  ACKNOWLEDGMENTS.  163 

SEC.  65.  Historical  View  of  the  Law  relating  to  Acknowledg- 
ments.—  When  the  statute  of  James  I.  went  into  operation,  the 
courts  were  inclined  to  construe  it  strictly,  and  an  acknowledg- 
ment to  take  a  case  out  of  the  operation  of  the  statue  was  required 
to  amount  virtually  to  an  express  promise ; l  and  in  some  of  the 
cases  it  is  suggested  that  not  only  must  there  be  a  new  promise, 
but  also  that  this  promise  must  be  founded  on  a  new  considera- 
tion.2 Later  on,  however,  greater  laxity  prevailed,  and  the 
courts,  acting  upon  the  mistaken  principle  that  the  statute  was 
predicated  upon  the  presumption  of  payment  of  the  debt,  and 
that  an  acknowledgment  that  rebutted  this  presumption  was 
sufficient,  for  a  time  held  that  any  admission  of  a  debt,  however 
indirect,  and  even  though  accompanied  by  a  distinct  expression 
of  an  intention  not  to  pay,   removed  the  statutory  bar.3     Lord 

Marclay,  1  Watts  (Penn.)  271;  Bullock  v.  Perry,  2  S.  &  P.  (Ala.)  319;  Beale  v. 
Edmondson,  3  Call  (Va.)  514.  These  cases  were  decided  when  the  old  theory  pre- 
vailed, and  before  it  was  regarded  as  essential  that  the  acknowledgment  should 
be  such  as  to  raise  a  new  promise  to  pay  the  debt. 

1  Lacon  v.  Briggs,  3  Atk.  105;  Williams  v.  Gun,  Foriescue,  177;  Bass  v.  Smith 
12  Vin.  Abr.  229, 

5  Bland  v.  Haselrig,  2  Vent.  151. 

3  Bryan  v.  Horseman.  4  East,  599;  Frost  7'.  Benough,  1  Bing.  266;  Partington, 
v.  Butcher,  6  Esp.  66;  Mount  Stephen  v.  Brooke,  3  B.  &  Aid.  141;  Clark  v. 
Hougham,  2  B.  &  C.  149;  Do»vtbwaite  v.  Tibbut,  5  M.  &  S.  75;  Scales  v.  Jacob, 
3  Bing.  688.  As  illustrating  the  old  rule,  see  Baillie  v.  Sibbald,  15  Ves.  185, 
where  a  plea  of  the  statute  was  overruled  upon  letters  from  the  defendant  to 
the  plaintiff  assigning  reasons  for  declining  to  pay,  and  recommending  the 
plaintiff  to  bring  an  action,  which  were  considered  as  amounting  to  acknowledg- 
ing the  debt  sufficiently  to  take  the  case  out  of  the  statute,  upon  the  authoriiies. 
though  against  principle.  Dowthwaite  ?'.  Tibbut,  5  M.  &  S.  75,  was  an  action 
of  assumpsit,  to  which  the  statute  of  limitations  was  pleaded.  The  plaintiff 
served  as  mate  on  a  voyage  to  and  from  Russia  in  1800,  and  the  demand  was 
for  wages  for  that  service,  which  took  place  during  the  Russian  embargo.  The 
defendant's  answer  to  a  demand  of  payment,  "  I  will  not  pay;  there  are  none 
paid,  and  I  do  not  mean  to  pay  unless  obliged;  you  may  go  and  try,"  was  held 
sufficient  to  take  the  case  out  of  the  statute  of  limitations.  In  assumpsit  against 
the  defendant  as  acceptor  of  a  bill  of  exchange,  and  upon  an  account  stated, 
evidence  that  (he  defendant  acknowledged  his  acceptance,  and  that  he  had  been 
liable,  but  said  that  he  was  not  liable  then  because  it  was  out  of  date,  and  that 
he  could  not  pay  it,  was  held  sufficient  to  take  the  case  out  of  the  statute, 
upon  a  plea  of  actio  non  accrevit  infra  sex  atinos.  Leaper  v.  Tatton,  16  East, 
420.  In  Peters  v.  Brown,  4  Esp.  46,  the  plaintiff,  to  prove  an  acknowledgment 
of  the  debt  by  the  defendant  within  six  years,  called  a  witness,  to  whom  the 
defendant  was  also  indebted,  he  having  called  on  him  for  money,  the  defend- 
ant's statement,  "  I  suppose  you  want  money;  but  I  can't  pay  you;  I  must  pay 
Mr.  Peters  (the  plaintiff)   first,  and   then   I'll   pay  you,"  was   held  a  sufficient 


164  STATUTES   OF   LIMITATION.  [CHAP.   VII. 

Ellenborough  sounded  the  first  note  of  change  in  this  lax  doctrine 
in  deciding  '■  that  while  he  felt  bound  by  previous  authorities  to 
follow  the  laxer  rule,  yet  intimated  quite  strongly  that  if  the 
question  was  res  Integra,  it  might  not  be  free  from  doubt;  and 
Gibbs,  C.  J.,  later  expressed  similar  views.2  The  courts  then 
began  to  change  the  rule,  until  finally  the  doctrine  was  brought 
up  to  the  true  theory,  upon  which  it  now  stands. 

The  statute  does  not  extinguish  the  debt,  but  only  bars  the 
remedy;3  it  may  therefore  be  revived  by  a  subsequent  promise 
or  an  unqualified  acknowledgment  on  the  part  of  the  defendant, 

acknowledgment  lo  take  the  case  out  of  the  statute,  notwithstanding  it  was  not 
made  to  the  party  himself.  If  a  defendant  admits  a  debt  otherwise  barred  by 
the  statute  of  limitations,  but  claims  to  be  discharged  by  a  written  instrument, 
which  does  not  amount  to  a  legal  discharge,  he  is  bound  by  the  admission,  and 
the  case  is  taken  out  of  the  statute  of  limitations.  Partington  v.  Butcher,  6 
Esp.  66.  In  assumpsit  for  work  and  labor  the  statute  was  pleaded;  evidence  of 
an  acknowledgment  by  the  defendant  that  the  plaintiff  had  performed  work  for 
him,  but  that  he  had  an  account  in  bar,  and  when  a  person  who  was  then  up 
the  bay  should  come  to  town  he  would  have  the  business  settled,  was  held  suffi- 
cient to  defeat  the  operation  of  the  statute.  Poe  v.  Conway's  Adm'r,  2  H.  &  J. 
(Md.)  307.  In  an  action  against  a  husband  for  goods  supplied  to  his  wife  for 
her  accommodation  while  he  occasionally  visited  her,  a  letter  written  by  the 
wife  acknowledging  the  debt  within  six  years  is  admissible  to  take  the  case  out 
of  the  statute  of  limitations.  Gregory  v.  Parker,  1  Camp.  394.  This  doctiine( 
was  followed  in  numerous  American  cases,  as  in  Cadmus  v.  Dumon,  1  N.  J.  L. 
176;  Sheppard  v.  Cook,  2  Hayvv.  (N.  C.)  241.  It  is  well  illustrated  in  Harris  v. 
Oliver,  1  H.  &  G.  (Md.)  204,  in  which  the  court  held  that  an  acknowledgment 
accompanied  by  n  naked  refusal  io  pay,  and  an  excuse  for  not  paying:,  which 
in  itself  implied  an  admission  that  the  debt  remained  due,  and  furnished  no  real 
objection  to  its  payment,  was  sufficient. 
1  Bryan  v.  Horseman,  4  East,  599. 
'  Hellings  v.  Shaw,  7  Taunt.  608. 

3Quantock  v.  England,  5  Burr.  2630;  Gustin  v.  Brattle,  Kirby  (Conn.)  303; 
Lord  v.  Shaler,  3  Conn.  131;  Jones  v.  Hooks,  2  Rand  (Va.)  299;  Graves  v. 
Graves,  2  Bibb  (Ky.)  207;  Com.  v.  McGovvan,  4  id.  63;  Barney  v.  Smith,  4  H. 
&  J.  (Md.)  495;  Oliver  v.  Gray,  1  H.  &  G.  (Md.)  204.  In  Hulbert  v.  Clark,  128 
N.  Y.  295,  it  was  held  that  the  statute  does  not  after  the  prescribed  period 
destroy,  discharge,  or  pay  a  debt  or  produce  a  presumption  of  payment,  but 
simply  stands  in  the  way  of  the  creditor  seeking  to  compel  payment;  that  a  lien 
on  property,  personal  or  real,  given  as  security  for  a  debt  is  not  impaired  by 
the  fact  that  the  remedy  at  law  for  its  recovery  is  barred  by  the  statute,  and 
that  the  legislature  may  repeal  the  statute,  and  a  debt  upon  which  action  was 
barred  at  the  time  of  the  repeal  may  thereafter  be  enforced  by  suit  without 
invading  the  constitutional  rights  of  the  debtor.  Jackson  v.  Sackett,  7  Wend. 
(N.  Y.)  94,  distinguished  and  limited;  Borst  v.  Corey,  15  N.  Y.  505,  distinguished 
and  questioned.  See  also  Campbell  v.  Holt,  115  U.  S.  620;  Johnson  v.  Albany 
&  Susquehanna  R.  Co.,  54  N.  Y.  416. 


§  65.]  ACKNOWLEDGMENTS.  l6$ 

although  it  was  formerly  held  that  a  promise  renewed  within  six 
years,  if  not  upon  a  new  consideration,  would  not  be  binding.1 
But  it  is  now  well  settled  that  a  promise  of  payment,  or  an 
unqualified  acknowledgment  of  the  debt  as  still  due  and  unpaid 
will,  if  made  within  the  six  years  before  action  is  brought, 
although  the  debt  was  contracted  long  before,  deprive  the  defend- 
ant of  the  benefit  of  the  statute.  And  a  promise  to  pay  a  debt 
barred  by  the  statute  is  sufficient  without  any  new  consideration, 
as  the  original  debt  is  a  sufficient  consideration,  and  the  new 
promise  revives  the  old  debt  instead  of  creating  a  new  one.2 

1  2  Vent.  152.  In  Lewis  v.  Hawkins,  23  Wall.  119,  Mr.  Justice  Swayne  said: 
"  That  the  remedy  upon  the  bond,  note,  or  simple  contract  for  the  purchase- 
money  is  barred  in  cases  like  this,  in  nowise  affects  the  right  to  proceed  in 
equity  against  the  land."  In  Hardin  v.  Boyd,  118  U.  S.  756,  which  was  a  bill  in 
equity  to  set  aside  a  conveyance  of  lands,  or  in  the  alternative  for  the  payment 
of  the  purchase-money,  and  to  make  it  a  lien  on  the  lands,  it  was  held  that, 
although  Ihe  debt  for  unpaid  purchase-money  was  barred  by  limitation  under 
the  local  law,  the  lien  therefor  on  the  land  was  not  barred.  See  Coldcleugh 
v.  Johnson,  34.  Ark.  312;  Thayer  v.  Mann,  19  Pick.  535;  Hancock  v.  Franklin 
Ins.  Co.,  114  Mass.  155.  In  Hannan  v.  Hannan,  123  Mass.  44.1,  in  an  action  to 
foreclose  a  mortgage  given  to  secure  a  note,  it  was  held  that  the  question 
whether  anything  is  due  upon  the  note  depends  mainly  upon  the  same  evidence 
as  if  the  note  were  in  suit,  and  that  in  such  an  action  the  defendant  may  show 
the  same  matters  in  defense  against  the  mortgage,  except  only  the  statute  of 
limitations,  that  he  could  against  the  note.  In  Shaw  v.  Silloway,  145  Mass. 
503,  it  was  said:  "  If  there  is  an  actual  pledge  and  the  debt  becomes  barred, 
this  does  not  give  the  debtor  a  right  to  reclaim  the  pledged  property."  In  Joy 
v.  Adams,  26  Me.  330,  it  was  held  that  the  mortgagor  could  not  defeat  the  fore- 
closure of  the  mortgage  by  showirg  merely  that  the  notes,  to  which  Ihe  mort- 
gage security  was  collateral,  had  become  barred  by  the  statute  of  limitations. 
In  Belknap  v.  Gleason,  11  Conn.  160,  it  was  held  that  statutes  of  limitations  do 
not  cancel  debts;  that  where  there  are  two  securities  for  the  same  debt,  one  of 
which  is  barred  by  the  statute,  and  the  other  not,  the  creditor,  when  he  has  lost 
his  remedy  at  law  on  the  former,  may  pursue  it  in  equity  on  the  latter;  and 
that  where  the  security  for  a  debt  is  a  lien  on  property,  personal  or  real,  that 
lien  is  not  impaired  because  the  debt  is  barred.  In  Ballou  v.  Taylor,  14  R.  I. 
277,  the  remedy  on  a  mortgage  was  held  not  lost  because  a  personal  action  on 
the  mortgage  note  was  barred  by  the  statute.  In  Spears  v.  Hartley,  3  Esp.  81, 
Lord  Eldon  held  that  a  wharfinger  who  had  a  lien  on  a  log  of  mahogany  would 
hold  the  log  until  his  demand  was  satisfied,  although  the  demand  was  barred 
by  the  statute  of  limitations.     See  also  Higgins  v.  Scott,  2  B.  &  Ad.  413. 

'Shackleford  v.  Douglass,  31  Miss.  95;  Harlan  v.  Bernie,  22  Ark.  217;  Usley 
v.  Jewett,  3  Met.  (Mass.)  439;  Newlin  v.  Duncan,  1  Harr.  (Del.)  204;  Kimmel  v. 
Schwartz,  1  111.  216.  Letters  written  by  a  debtor  to  his  creditor,  acknowledg- 
ing an  indebtedness  Dut  declaring  his  inability  to  pay  it,  are  sufficient  to  over- 
come the  statute.  See  Bloom  v.  Kern,  30  La.  Ann.  part  2,  1263.  An 
acknowledgment  of  a  debt   by  a  testator,  by  a  schedule  prepared  at  the  time  of 


l66  STATUTES   OF   LIMITATION.  [CHAP.   VII. 

SEC.  66.  Acknowledgments  reply  only  to  Assumpsit.  Theory 
on  which  founded. — The  doctrine  relating  to  acknowledgments 
applies  only  to  cases  founded  upon  assumpsit,  and  has  no  appli- 
cation where  the  action  does  not  rest  upon  a  promise.  An 
express  promise  to  pay  a  bond  barred  by  statute  does  not  remove 
the  statute  bar;  but  it  is  held  that  an  action  of  assumpsit  may  be 
maintained  upon  such  promise,  and  the  bond  may  be  given  in 

making  his  will,  if  made  within  the  period  prescribed  by  statute  before  action 
brought,  is  sufficient.  Rogers  v.  Southern,  4  Baxter  (Tenn.)  67.  See  also 
Scovel  v.  Gill,  30  La.  Ann.  part.  2,  1207;  Finkbone's  Appeal,  86  Penn.  St.  368. 
But  see  Canton  Female  Academy  v.  Gilman,  55  Miss.  148,  where  a  letter  in 
these  words  was  held  insufficient.  "  It  would  suit  my  convenience  to  execute 
my  note  for  the  balance  due  you  for  rent,  payable  Jan.  1,  1877."  In  Oliver  v. 
Grav,  1  H.  &  G.  (Md.)  204,  Buchanan,  C.  J.,  said-  "The  only  difference 
between  the  act  of  limitations  in  this  State  and  the  statute  of  James  is,  that  here 
the  limitation  is  but  three  years;  and  in  this  State  the  rule  prevailing  in  Eng- 
land, that  an  acknowledgment  of  the  debt  by  the  defendant,  within  the  lime 
prescribed  for  bringing  the  suit,  is  sufficient  to  take  the  case  out  of  the  statute, 
has  been  adopted."  "  Perhaps  it  would  have  been  Letter,  if,  -instead  of 
endeavoring  to  rescue  particular  cases  out  of  its  operation,  the  letter  of  the 
statute  had  been  strictly  adhered  to;  if  the  original  debt  had  always  been  con- 
sidered as  extinguished,  and  the  moral  obligation  treated  as  a  sufficient  con- 
sideration for  an  express  promise  to  pay,  on  which  to  found  an  action.  But 
according  to  all  the  cases  (for  in  this  at  least  they  agree),  the  debt  is  considered 
as  not  extinguished,  and  the  defendant  can  only  avail  himself  of  the  statute  of 
England,  and  act  of  assembly  here,  by  pleading  it;  which,  if  he  omits  to  do,  it 
is  held  to  be  a  waiver  of  its  be  nefit,  and  the  plaintiff  may  recover  on  the  general 
issue,  though  the  debt  should  appear  by  the  declaration  to  be  of  no  longer 
standing  than  the  limited  period.  This  settled  construction  has  produced  all 
the  difficulties  and  discrepancies  complained  of;  tut  it  is  a  construction  which 
is  not  now  to  be  shaken  by  us;  nor,  on  the  other  hand,  should  its  operation  be 
extended  further  than  it  has  already  gone."  He  then  lays  down  these  general 
rules: 

"1st.  The  suit  is  to  be  brought  on  the  original  cause  of  action,  and  not  on  the 
new  promise  or  acknowledgment,  which  only  has  the  effect  to  restore  the 
remedy;  which  is  not  only  according  to  the  common  practice,  but  is  directly  and 
strongly  asserted  in  Barney  v.  Smith,  4  H.  &  J.  (Md.)  485. 

"  2d.  It  need  not  be  absolute  and  unconditional,  but  a  conditional  promise  is 
sufficient;  and  in  such  case  it  is  incumbent  on  the  plaintiff  to  show  at  the  trial 
either  a  performance  of  the  condition,  or  a  readiness  to  perform  it,  as  if  the 
words  be,  '  prove  your  debt,  and  I  will  pay  you,'  which  is  an  express  promise  to 
pay,  on  condition  that  the  debt  is  proved.  Heyling  v.  Hastings,  1  Ld.  Raym. 
380;  True-man  v.  Fenton,  2  Cowp.  548;  Davies  v.  Smith,  4  Esp.  36;  Loweth  v. 
Fothergill,  4  Camp.  185;  Bush  v.  Barnard,  8  Johns.  (N.  Y.)  407.  These  cases 
furni  ih  different  examples  of  conditional  promises  to  pay,  each  of  which  was 
held  Buffi   ii  nl  to  take  the  case  out  of  the  statute. 

"  3d.   An  acknowledgment  to  take  the  case  out  of  the  act  of  limitations  must 


§  66.]  ACKNOWLEDGMENTS.  167 

evidence  as  the  consideration  of  the  promise.1  In  New  York  a 
promise  to  pay  a  bond  barred  by  the  statute,  evidenced  by  a 
written  acknowledgment  thereon  within  twenty  years,  was  held 
sufficient  to  rebut  the  presumption  of  payment  and  to  uphold  an 
action  on  the  bond;2  and  in  Missouri  it  was  held  that  a  part  pay- 
ment of  a  bond  removed  the  statute  bar.3  In  Kentucky  it  was 
held  that  where  the  obligor  of  a  bond,  with  a  full  knowledge  of  his 
legal  rights,  admits  his  liability,  such  admission  removes  the  stat- 
ute bar,4  and  a  payment  of  interest  on  a  bond  before  the  statute 
has  run  thereon  has  been  held  sufficient  to  suspend  the  statute.5 
The  present  theory  relative  to  acknowledgments,  part  pay- 
ments, etc.,  is  not  applicable  to  specialties;  and  where  such  debts 
are  within  the  statute,  an  acknowledgment,  new  promise,  or  part 
payment  cannot  operate  either  to  suspend  the  operation  of  the 
statute  or  to  remove  the  bar  when  it  has  once  attached.  Upon 
such  obligations  the  action  is  not,  and  in  the  nature  of  things  can- 
not be,  grounded  upon  a  promise,  but  must  be  either  in  debt  or 

be  of  a  present  subsisting  debt,  unaccompanied  by  any  qualification  or  declara- 
tions, which,  if  true,  would  exempt  the  defendant  from  a  moral  obligation  to 
pay;  for  the  law  will  not  raise  an  assumpsit,  or  imply  a  promise  to  pay  what 
in  equity  and  good  conscience  a  man  is  not  bound  to  pay." 

"4th.  What  kind  of  promise  or  acknowledgment  is  sufficient  to  take  a  case 
out  of  the  act  of  limitations  is  for  the  court  to  decide;  and  Ihe  evidence  offered 
to  prove  such  promise  or  acknowledgment  is  proper  to  be  submitted  to  the  jury, 
as  in  other  cases,  under  the  direction  of  the  court. 

"  It  has  been  contended  in  this  case  that  where  the  defendant  alleges  the  debt 
to  have  been  discharged,  and  refers  to  a  particular  mode  of  discharge,  the 
plaintiff  may  entitle  himself  to  recover  by  disproving  the  mode  of  discharge 
referred  lo."  See  Hellings  v.  Shaw,  7  Taunt.  608;  Beale  v.  Nind,  4  B.  &  Aid. 
571.  We  think  that  every  acknowledgment  of  a  debt,  which  is  offered  to  take  a 
<;ase  out  of  the  act  of  limitations,  must  be  taken  altogether,  and  that  no  evidence 
can  be  received  to  turn  a  denial  of  the  existence  of  the  debt  into  an  acknowl- 
edgment of  a  subsisting  liability,  by  proving  that  he  was  mistaken  in  supposing 
it  to  have  been  paid;  which  would  be  to  take  a  case  out  of  the  act  of  limitations 
by  other  proof  than  the  acknowledgment  of  the  party,  for  in  such  a  case  he 
manifestly  not  only  does  not  intend  to  acknowledge  a  present  subsisting  debt, 
but  in  fact  denies  it,  and  there  is  nothing  to  carry,  or  on  which  the  law  can  raise 
an  implied  assumpsit.  In  this  opinion  the  propositions  from  three  to  ten  do 
not  state  the  law  as  it  now  exists  and  hence  are  omitted. 

1  Young  v.  Mackall,  3  Md    Ch.  398. 

5Carll  v.  Hart,  15  Barb.  (N.  Y.)  565. 

3  Vernon  County  v.  Stewart,  64  Mo.  408. 

4  Tillett  v.  Com'th,  q  B.  Mon.  (Ky.)  438. 

6  Banning  on  Lim.  30;  Craig  v.  Callaway  County  Court,  12  Mo.  94;  Armistead 
v.  Brooke,  18  Ark.  521 ;  Hartman  v.  Sharp,  51  Mo.  29. 


l68  STATUTES   OF   LIMITATION.  [CHAP.   VII. 

covenant,  or  actions  in  effect  the  same;  and  if  the  obligation  is 
in  anywise  changed  or  altered  by  parol  or  a  writing  not  under 
seal,  it  is  instantly  reduced  to  a  simple  contract ,  but  a  promise  to 
pay,  or  an  admission  of  liability  thereon,  does  not  produce  this 
effect.  The  action  still  remains  a  specialty  action  and  it  is  diffi- 
cult to  understand  how  to  a  plea  of  the  statute  a  new  promise  can 
be  replied  ;  and  in  Alabama  !  it  is  held  that  a  new  promise  will  not 
revive  such  a  debt.  The  same  rule  applies  to  all  specialty  debts, 
or  debts  which  cannot  be  recovered  in  assumpsit.  Thus,  it  has 
been  held  (and  we  think  correctly),  that  the  replication  to  a  plea 
of  the  statute  of  a  new  promise  is  not  good  in  an  action  upon  a 
judgment  of  a  court  of  record,  such  replications  being  held  only 
applicable  in  actions  upon  promises.2  In  New  York3  such  a 
replication  to  an  action  on  a  justice's  judgment  was  sustained  ;  but 
it  was  sustained  for  reasons  peculiar  to  that  State,  and  upon 
reasoning  that  will  hardly  commend  it  as  an  authority.  But 
where  the  statute,  as  is  the  case  in  some  of  the  States,  expressly 
provides  that  part  payment,  etc.,  shall  remove  the  bar  as  to  this 
class  of  claims  to  the  extent  so  provided,  effect  must  be  given 
thereto;  and  where  this  class  of  claims  is  left  to  the  operation  of 
the  presumption  of  payment  and  satisfaction  arising  from  the  lapse 
of  time,  a  payment,  or  acknowledgment  even,  overcomes  this 
presumption,  and  gives  it  a  new  period  of  life.  If  the  gist  of  an 
action  is  the  injury  committed  by  the  defendant,  and  the  right 
of  action  is  once  barred  by  the  statute,  it  is  impossible  to  revive 
it  by  an  acknowledgment  that  the  defendant  committed  the 
injury,  or  of  an  indebtedness  resulting  therefrom;4  and  in  the 
case  of  torts  no  acknowledgment  can,  upon  any  principle,  suffice 
to  avoid  the  statute.5  (a)     A  promise  to  make  compensation  for  a 

1  Crawford  v.  Childress,  i  Ala.  482. 

'■'Taylor  v.  Spicey,  11  Ired.  (M.  C.)  L.  427;   Niblack  v.  Goodman,  67   Ind.  174- 

3Carshore  v.  Huyck,  6  Barb    (N.  Y.)  583. 

4  Brand  v.  Longstreet,  4  N.  J.  L.  325;  Avant  v.  Sweet,  1  Brev.  (S.  C.)  228.  In 
Gallighcr  v.  Hollingsworth,  3  H.  &  McH.  (Md.)  122.  a  promise  after  the  statute 
had  run  was  held  not  sufficient  to  take  a  case  out  of  the  statute  against  a  carrier 
for  a  loss  of  goods,  as  it  was  founded  upon  a  tort.  Ott  v.  Whitworth,  8 
Humph.  (Tenn.)  494;  Oothout  v.  Thompson,  20  Johns.  (N.  Y.)  277;  Hurst  v. 
Parker,  1    B.  &  Aid.  02. 

5  Where  the  plainiifl  has  the  right  to  waive  the  tort  and  proceed  in  assumpsit, 

(  0  While  an  ai  lion  of  tort  cannot  be  the  plaintiff  to  refrain  from  bringing  an 
ba  ed  upon  or  revived  by  a  promise,  action  of  tort  within  the  period  fixed 
yet.  if  the  defendant's  conduct  induces     by  the  statute,  the  defendant    may  be 


§  66.]  ACKNOWLEDGMENTS.  169 

trespass  committed  in  illegally  taking  away  coals  in  a  coal-mine 
is  not  sufficient  to  revive  the  cause  of  action  in  tort.1 

the  rale  stated  in  the  text  does  not  apply,  especially  if  the  plaintiff  makes  his 
election  before  the  statute  has  run.  Morton  v.  Chandler,  g  Me.  9.  In  an  action 
of  assumpsit,  the  declaration  stated  as  a  breach,  that  the  defendant  did  not 
diligently  and  sufficiently  make  a  search  at  the  Bank  of  England,  to  ascertain 
whether  certain  stock  was  standing  in  the  name  of  certain  persons,  the  defend- 
ant having  been  employed  as  an  attorney  so  to  do.  The  omission  to  search  took 
place  more  than  six  years  before  action  brought,  although  it  was  not  discovered 
by  the  plaintiff  until  within  six  years.  On  the  discovery  being  made,  the 
defendant  said  that  it  was  owing  to  the  omission  of  his  clerk,  and  that  he,  the 
defendant,  was  responsible.  The  statute  of  limitations  ha/ing  been  pleaded,  it 
was  held  that  upon  this  form  of  declaration  the  plaintiff  was  not  entitled  to 
recover;  and  that  upon  this  record  such  an  acknowledgment  was  not  sufficient 
to  take  the  case  out  of  the  statute.  Short  v.  McCarihy,  3  B.  &  Aid.  626. 
Where  the  declaration  stated  that  the  defendant,  on  consideration,  etc.,  promised 
to  invest  the  plaintiff's  money  on  good  security;  but  that  he  invested  it  on  bad 
security,  and  the  defendant  pleaded  the  general  issue  and  statute  of  limitations; 
replication,  that  defendant  promised  as  above  within  six  years;  proof,  that 
within  that  time  the  defendant  acknowledged  the  security  to  be  bad,  and 
promised  that  plaintiff  should  be  paid,  it  was  held  that  the  plaintiff  could  not 
recover,  the  declaration  stating  no  debt  to  which  the  subsequent  promise  could 
be  applied.  Dallas,  C.  J.,  said:  "  To  revive  a  debt  by  promise,  ard  take  a 
case  out  of  the  statute,  there  must  be  an  antecedent  debt,  and  if  a  promise 
should  be  made,  when  there  is  no  antecedent  debt,  it  would  be  necessary  to 
frame  a  special  declaration  on  such  a  promise."  Whitehead  v.  Howard,  2  B.  & 
B.  372.  An  assumpsit  after  three  years  is  not  sufficier  t  to  take  a  case  out  of  the 
statute  of  limitations  against  a  carrier,  it  being  founded  on  a  tort.  Galligher  v. 
Hollingsvvorth,  3  H.  &  McII.  (Md.)  122.  An  admission  of  a  fraud  within  six 
years  cannot  render  the  partv  guilty  of  committing  it  anew.  Oothout  v.  Thomp- 
son, 20  Johns.  (N.  Y.)  278. 

1  Hurst  v.  Parker,  1  B.  &  Aid.  92.  In  Tanner  v.  Smart,  6  B.  &  C.  603.  605. 
Tenterden,  C.  J.  said :  "  It  is  only  in  actions  of  assumpsit  that  an  acknowledg- 
ment can  be  held  an  answer;  and  when,  in  the  case  of  Hurst  v.  Parker,  it  was 
decided  to  be  inapplicable  to  actions  of  trespass,  Lord  Ellenborough  gave  what 
appears  to  be  the  true  reason,  that  in  assumpsit  '  an  acknowledgment  of  the 
debt  is  evidence  of  a  fresh  promise,'  and  that  promise  is  considered  as  one  of  the 
promises  laid  in  the  declaration,  and  one  of  the  causes  of  action  which  the  decla- 
ration states.  If  acknowledgment  had  the  effect  which  the  cases  in  the  plain- 
tiff's favor  attribute  to  it,  one  would  have  expected  that  the  replication  to  a  plea 
of  the  statute  could  have  pleaded  the  acknowledgment  in  terms,  and  relied 
upon  it  as  a  bar  to  the  statute,  whereas  the  customary  replication,  ever  since 
the  statute,  to  let  in  evidence  of  acknowledgment,  is  that  the  cause  of  action 
accrued  or  the  defendant  made  the  promise  within  six  years.  And  the  only 
principle   upon   which  it  can  be  held  to  be  an  answer  to  the  statute  is  this,  that 

thereby  estopped  to  rely  upon  the  stat-     122  Mich.  613.     See  Chance  v.  Jennings 
ute.     Armstrong  v.  Levan,   109  Penn.     (Mo.),  61  S.  W.  177. 
St.  177;  Renackowsky  v.  Water  Com'r;, 


170  STATUTES    OF    LIMITATION.  [CHAP.   VII. 

SEC.  67.  Crucial  Test.  Rule  in  A'Court  v.  Cross. — A  crucial 
test  at  length  arose  in  the  case  of  A'Court  v.  Cross,1  where,  the 
defendant  having  made  an  admission  in  the  following  terms:  "  I 
know  that  I  owe  the  money,  but  the  bill  I  gave  is  on  a  three- 
penny stamp,  and  I  will  never  pay  it,"  the  decision  in  favor  of 
the  defendant  practically  overruled  many  intermediate  decisions 
and  returned  to  something  of  the  strictness  of  the  primitive  con- 
struction of  the  act.  Best,  C.  J.,  here  remarked:  "  I  am  sorry 
to  admit  that  the  courts  of  justice  have  been  deservedly  censured 
for  their  vacillating  decisions  on  the  21  James  I.,  c.  16.  When 
by  distinctions  and  refinement  which,  Lord  Mansfield  says,  the 
common  sense  of  mankind  cannot  keep  pace  with  any  branch  of 
the  law  is  brought  into  a  state  of  uncertainty,  the  evil  is  only  to 
be  remedied  by  going  back  to  the  statute."  Yet  it  is  not  wholly 
correct  to  say  that  an  acknowledgment  revives  the  previous  debt. 
It  rather  creates  a  new  debt  by  virtue  of  an  implied  promise;  yet 
it  does  to  a  certain  extent  revive  the  previous  debt,  so  far  as  is 
sufficient  to  make  it  a  good  consideration  for  the  new  promise. 

SEC.  68.  Present  Theory.  —  The  theory  of  acknowledgment  is 
now  settled  as  to  simple  contracts,  on  the  principle  that  there  is 

an  acknowledgment  is  evidence  of  a  new  promise,  and,  as  such,  creates  a  new 
cause  of  action,  and  supports  and  establishes  the  promises  which  the  declara- 
tion stales.  Upon  this  principle,  wherever  the  acknowledgment  supports  any 
of  the  promises  in  the  declaration,  the  plaintiff  succeeds;  where  it  does  not  so 
support  them  (though  it  may  show  clearly  that  the  debt  never  has  been  paid, 
but  is  still  a  subsisting  debt),  the  plaintiff  fails."  In  Little  v.  Blunt,  9  Pick. 
(Mass.)  488,  the  court  say:  "A  new  promise  is  a  new  cause  of  action,  but  the 
plaintiff  may  declare  on  the  original  promise,  and  if  the  statute  is  pleaded,  he 
may  reply  the  new  promise.  He  need  not  declare  specially  on  the  new  promise." 
Baxter  v.  Penniman,  8  Mass.  133;  SuHivan  v.  Halker,  15  id.  374;  Brown  v. 
Anderson,  13  id.  201;  Oliver  v.  Gray,  1  H.  &  G.  (Md.)2o_i;  Kimmel  v.  Schwartz, 
i  111.  216. 

1  3  Bing.  329.  The  present  doctrine  on  the  subject  was  thus  explained  by 
Wigram,  V.  C,  in  Phillips  v.  Phillips,  3  Hare,  281.  "  The  legal  effect  of  an 
acknowledgment  of  a  debt  barred  by  the  statute  of  limitations  is  that  of  a 
promise  to  pay  the  old  debt,  and  for  this  purpose  the  old  debt  is  a  consideration 
in  law.  In  that  sense  and  for  that  purpose  the  old  debt  may  be  said  to  be 
revived.  It  is  revived  as  a  consideration  for  a  new  promise.  But  the  new 
promise  and  not  the  old  debt  is  the  measure  of  the  creditor's  right.  If  a  debtor 
simply  acknowledges  an  old  debt,  the  law  implies  from  that  simple  acknowl- 
<■  Igment  a  promise  to  pay  it,  for  which  promise  the  old  debt  is  a  sufficient  con- 
sideration. But  if  the  debtor  promises  to  pay  the  old  debt  when  he  is  able,  or 
by  instalments,  or  in  two  years,  or  out  of  a  particular  fund,  the  creditoi  can 
claim  nothing  more  than  the  promise  gives  him." 


§  68.]  ACKNOWLEDGMENTS.  171 

required  either  an  express  promise  to  pay  the  debt  or  an  absolute 
admission  of  indebtedness  from  which  a  promise  to  pay  may  nat- 
urally be  inferred,1  which  new  promise  is  sufficiently  supported 

'Smith  v.  Thorne,  18  Q.  B.  134,  143;  Senseman  v.  Hershman,  82  Penn.  St. 
83;  Miller  v.  Baschore,  83  id.  356;  Wachter  v.  Albee,  80  111.  47;  Faison  v. 
Bowden,  76  N.  C.  425;  Carpenter  v.  State,  41  Wis.  36;  Bell  v.  Crawford,  8 
Gratt.  (Va.)  no;  Ross  v.  Ross,  20  Ala.  105;  Bryan  v.  Ware,  20  id.  687;  Ten 
Eyck  v.  Wing,  1  Mich.  40;  Johnson  v.  Evans,  8  Gill  (Md.)  155;  Grant  v.  Ashley, 
12  Ark.  762;  Bailey  v.  Crane,  21  Pick.  (Mass.)  323;  Mumford  v.  .Freernan,  8 
Met.  (Mass.)  432.  Except  where  the  statute  otherwise  provides,  an  express 
promise  is  not  necessary.  Black  v.  Reybold,  3  Harr.  (Del.)  528;  Lee  v.  Polk,  4 
McCord  (S.  C.)  215.  But  the  acknowledgment  must  be  so  explicit  as  to  be 
equivalent  to  a  promise.  Fellows  v.  Guimarin,  Dudley  (Ga.)  100;  Brewster  v. 
Hardeman,  id.  138;  Broddie  v.  Johnson,  I  Sneed  (Tenn.)  464.  In  Bell  v. 
Morrison,  1  Pet.  (U.  S.)  351,  Story,  J.,  stated  the  modern  rule,  to  the  effect  that 
an  acknowledgment,  in  order  to  repeal  the  statute,  must  show  positively  that 
the  debt  is  due,  either  wholly  or  in  part,  and  must  be  unqualified.  And  if  the 
bar  is  sought  to  be  renewed  by  a  new  promise,  that  promise,  as  a  new  cause  of 
action,  must  be  proved  in  a  clear  and  explicit  manner,  and  be  unequivocal  and 
determinate.  If  there  is  no  express  promise,  and  a  promise  is  to  be  raised  by 
implication  of  law  from  the  acknowledgment  of  the  party,  such  acknowledg- 
ment ought  to  contain  an  unqualified  and  direct  admission  of  a  previous  sub- 
sisting debt,  which  the  patty  is  liable  and  willing  to  pay.  Strickland  v.  Walker, 
37  Ala.  385;  Ash  v.  Patton,  3  S.  &  R.  (Penn.)  300;  Yaw  v.  Kerr,  47  Penn.  St. 
333;  Evans  v.  Carey,  29  Ala.  99;  Gauche  v.  Gondran,  20  La.  Ann.  156;  Conover 
v.  Conover,  1  N.  J.  Eq.  403;  Waples  v.  Layton,  3  Harr.  (Del.)  508;  Bangs  v. 
Hall,  2  Pick.  (Mass.)  36S;  Belles  v.  Belles,  1  N.  J.  L.  339;  French  v.  Frazier,  7 
J.  J.  Mar.  (Ky.)425;  Oliver  v.  Gray,  1  H.  &  G.  (Md.)  204;  Phelps  v.  Sleeper, 
17  N.  H.  332;  Hunter  v.  Kittredge,  41  Vt.  359;  Steele  v.  Towne,  28  id.  771. 
"  If,"  said  Shaw,  C.  J.,  in  Sigourney  v.  Drury,  14  Pick.  (Mass.)  390,  "  more" 
than  six  years  have  elapsed  since  the  making  of  the  original  promise,  or  since 
the  cause  of  action  thereon  accrued,  it  must  appear  that  the  defendant  has  made 
a  new  promise  to  pay  within  six  years.  Such  promise  may  be  express  or 
implied,  and  a  jury  will  be  authorized  and  bound  to  infer  such  promise,  from  a 
clear,  unconditional,  and  unqualified  admission  of  the  existence  of  the  debt, 
at  the  time  of  such  admission,  if  unaccompanied  with  any  refusal  to  pay,  or 
declaration  indicative  of  any  intention  to  insist  on  the  statute  of  limitations  as 
a  bar."  This  implies  that  the  most  unqualified  admission  of  the  existence  of  a 
debt  will  be  insufficient  for  a  recovery,  if  accompanied  by  expressions  showing: 
an  intention  not  to  pay  it,  or  to  rely  on  the  statute  for  protection.  The  same 
rule  prevails  in  the  U.  S.  Supreme  Court,  where  it  is  settled  that  evidence  of  the 
confessions  of  the  defendant  that  the  debt  still  subsists,  will  not  render  him 
'liable,  when  more  than  six  years  have  elapsed  since  the  cause  of  action  accrued, 
unless  they  are  unqualified  by  any  expressions  inconsistent  with  an  intent  of 
payment.  This  doctrine  was  held  by  Marshall,  C.  J.,  in  Wetzell  v.  Bussard.  n 
Wheat.  (U.  S.)  315,  and  still  more  strongly  laid  down  in  Moore  v.  Bank  of 
Columbia,  6  Pet.  (U.  S.)  92.  It  was  there  said,  that  to  take  a  case  out  of  the 
•statute,  "  where  there  is  no  express  promise,  there  must  be  an  unqualified  and 


172  STATUTES    OF    LIMITATION.  [CHAP.  VII. 

direct  admission  of  a  subsisting  debt  which  the  party  is  willing  to  pay,"  and 
that  if  there  are  "  accompanying  circumstances  which  repel  the  intention  to 
pay,"  the  plaintiff  cannot  recover.  A  new  promise  is  held  necessary,  and  on 
the  maxim  cxpressum  facit  cessare  taciturn,  the  fullest  acknowledgment  of  a 
debt  is  not  permitted  to  raise  a  legal  promise  of  payment,  when  accompanied 
by  expressions  inconsistent  with  an  intention  to  revive  the  obligation  which  the 
statute  has  extinguished.  Fries  v.  Boisselet,  9  S.  &  R.  (Penn.)  128;  Church  v. 
Feterow,  2  Penn.  301:  Hogan  v.  Bear,  5  Watts  (Penn.)  111;  Berghaus  v.  Cal- 
houn, 6  id.  219;  Allison  v.  Jarr.es,  9  id.  380;  Hay  v.  Kramer,  2  W.  &  S.  (Penn.) 
137;  Gilkyson  v.  Larue,  6  id.  213.  The  same  rule  prevails  in  most  of  the  other 
States,  and  there  can  be  no  recovery  in  cases  barred  by  the  statute,  without 
such  an  acknowledgment  of  the  obligation  of  the  defendant,  as  to  constitute  a 
new  cause  of  action  when  the  suit  is  brought  in  debt,  or  raise  a"  new  promise  by 
implication  when  it  is  in  assumpsit.  Bromwell  v.  Buckman,  7  Blackf.  (Ind.) 
537;  Robbins  v.  Farley,  2  Strobh,  (S.  C.)  348;  Dickinson  v.  Conway,  5  Ga.  486; 
M'Lellan  v.  Albee,  17  Me.  184;  Pray  v.  Garcelon,  id  145;  Porter  v.  Hill,  4  id. 
41;  Perley  v.  Little,  3  id.  97:  Ventris  7'.  Shaw,  14  N.  H.  422;  Shaw  v.  Newell, 
1  R.  I.  488;  Fry  v.  Kerk,  4  G.  &  J.  (Md.)  509;  Ten  Eyck  v.  Wing,  1  Mich.  40; 
Taylor  v.  Stedman,  ir  Ired.  (N.  C.)  447;  Sherrod  v.  Bennett,  8  id.  309;  Cross  v. 
Conner,  14  Vt.  398;  Phelps  v.  Stewart,  12  id.  256;  White  v.  Dow,  23  id.  300; 
Brainard  v.  Buck,  25  id.  573,  Ayres  v.  Richards,  12  111.  146;  Exeter  Bank  v. 
Sullivan.  6  N.  H.  124;  Tiller,  v.  Linsey,  6  J.  J.  Mar.  (Ky.)  337;  Head  v.  Man- 
ners, 5  id.  255;  Harrison  v.  Handley,  1  Bibb  (Ky.)  443;  Gray  v.  Lawridge,  2  id. 
235.  The  admission  must  not  only  be  unqualified  in  itself,  but  there  must  be 
nothing  in  the  attendant  acts  or  declarations  of  the  defendant  to  qualify  it,  or 
rebut  the  inference  of  willingness  to  pay,  to  which  an  unqualified  admission 
naturally  and  primarily  gives  rise.  Thus,  in  Rackham  v.  Marriott,  2  H.  &  N. 
195,  in  answer  to  an  application  for  payment  of  a  debt,  the  debtor  wrote: 
"  I  do  not  wish  to  avail  myself  of  the  statute  of  limitations  to  refuse  payment 
of  the  debt.  I  have  not  the  means  of  payment,  and  must  crave  a  continuance 
of  your  indulgence.  My  situation  as  a  clerk  does  not  afford  me  the  means  of 
laying  by  a  shilling;  but  in  time  I  may  reap  the  benefit  of  my  services  in  an 
augmentation  of  salary  that  may  enable  me  to  propose  some  satisfactory 
arrangement.  I  am  much  obliged  to  you  for  your  forbearance,"  it  was  held  in 
the  Exchequer  Chamber,  affirming  the  judgment  of  the  Court  of  Exchequer,  that 
the  letter  contained  no  sufficient  acknowledgment  or  promise  to  take  the  case 
out  of  the  statute  of  limitations.  Cockburn,  C.  J.,  here  said:  "  We  are  all 
agreed  that  the  judgment  of  the  Court  of  Exchequer  ought  to  be  affirmed. 
There  is  here  an  acknowledgment  of  a  debt,  but  not  an  acknowledgment  coupled 
with  a  promise  to  pay,  either  on  demand,  or  at  a  future  period  which  has 
elapsed,  or  on  a  condition  which  has  been  fulfilled.  An  acknowledgment  with- 
out a  promise  is  not  sufficient  to  take  a  case  out  of  the  statute  of  limitations. 
Looking  to  the  current  of  authorities,  and  more  especially  to  the  last  case  on 
the  subject,  Smith  v.  Thorne,  18  Q.  B.  134,  and  being  of  opinion  that  the  princi- 
pl  is  applicable  to  the  present  case,  we  think  that  the  acknowledgment  must 
amount  to  a  promise  to  pay  either  on  request,  or  at  a  future  period,  or  on  a  con- 
dition,  Here  there  is  a  mere  expression  of  a  hope  to  make  some  satisfactory 
arrangement,  not  an  acknowledgment  coupled  with  a  promise  to  pay."  To 
remove  ih<-  bar  of  the  statute,  the  promise  must  either  be  immediate  and 
Unconditional,  or    proof    must    be   given   that  the  conditions,  if  any,  have  been 


§68.]  ACKNOWLEDGMENTS.  173 

by  the  consideration  of  the  past  debt;1  and  a  clear  admission  of 

accepted  and  fulfilled.  The  Kensington  Bank  v.  Patton,  16  Penn.  St.  479. 
But  the  admission  or  assumption  of  an  immediate  legal  liability  will  be  suffi- 
cient without  a  promise  to  pay  immediately  for  otherwise  no  debt  could  be. 
revived,  unless  the  debtor  had  the  cash  about  him,  or  where  he  could  lay  his 
hands  on  it  at  once.  Shitler  v.  Bremer,  23  Penn.  St.  413;  Zacharias  v.  Zacha- 
rias,  id.  452;  Steele  v.  Town,  28  Vt.  771.  To  take  the  case  out  of  the  statule, 
the  acknowledgment  tuust  be  cleat  and  unequivocal;  for  since  it  acts, not  by 
reviving  the  old  promise,  but  by  creating  a  new  one,  it  must  be  an  acknowledg- 
ment from  which  this  new  promise  may  be  implied.  Hurst  v.  Parker,  1  B.  S: 
Aid.  92;  Phillips  v.  Phillips,  3  Hare,  281;  Buckmaster  v.  Russell,  10  C.  B.  N. 
S.  749  The  acknowledgment  must  be  in  direct  terms.  Cockrill  v.  Sparkes,  1 
H.  &  C.  699.  There  are  two  classes  of  cases  upon  this  subject:  the  one  where 
there  has  been  an  absolute  and  unconditional  acknowledgment  of  the  debt, 
though  with  an  appeal  to  the  forbearance  of  the  creditor;  the  other  where  the 
acknowledgment  is  limited  by  some  qualification  or  condiiion.  In  both  cases 
the  debt  is  taken  out  of  the  statute;  for  if  the  acknowledgment  is  distinct,  a 
promise  to  pay  is  implied;  but  if  the  acknowledgment  is  simple  and  absolute, 
the  promise  implied  is  a  promise  to  pay  on  request;  if  conditional,  a  promise  to 
pay  according  to  the  condition.  Tanner  v.  Smart,  6  B.  &  C.  603;  Smith  v. 
Thome,  18  Q.  B.  143.  The  former  class  is  represented  by  Cornforth  v.  Smith- 
ard,  5  H.  &  N.  13,  where  the  words,  "  I  am  ashamed  the  account  has  stood  so 
long,"  were  held  to  be  a  sufficient  acknowledgment,  and  not  limited  by  words 
following  which  asked  for  time;  and  the  fact  relied  on  that  the  letter  was 
written  before  the  debt  was  barred,  when  the  debtor  was  not  is  a  position  to 
impose  terms,  cannot  be  reasonably  supposed  to  have  been  meant  to  restrict  his 
promise.  Bramwell,  B.,  in  Sidwell  v.  Mason,  2  H.  &  N.  310,  as  illustrating  the 
second  class,  says:  "  It  seems  to  me  a  mistake  has  been  made  in  several  cases 
with  respect  to  the  expression  of  hope,  in  holding  that,  because  along  with  an 
unconditional  acknowledgment  of  a  debt  a  man  expresses  a  hope  to  be  able  to 
do  that  which  he  was  legally  obliged  to  do,  such  an  acknowledgment  is  not 
sufficient."  See  especially  Miller  v.  Baschore,  83  Penn.  St.  356.  In  a  third 
class  of  cases,  in  which  no  sufficient  acknowledgment  is  found,  is  illustratated 
by  Rackham  v.  Marriot,  2  H.  &  N.  196,  and  is  characterized  by  the  fact  that  in 
no  part  of  the  document  is  there  any  distinct  acknowledgment  of  the  existence 
of  the  debt. 

1  Phillips  v.  Phillips,  3  Hare,  2S1.  An  acknowledgment  must  go  to  the  fact 
that  the  debt  is  still  due,  Clementson  v.  Williams,  8  Cranch  (U.  S.)  72,  and 
there  must  also  be  either  an  express  promise  to  pay,  or  circumstances  from 
which  an  implied  promise  may  fairly  be  presumed,  Moore  v.  Bank  of  Columbia. 
6  Pet.  (U.  S.)  86.  If  a  promise  is  to  be  raised  by  implication  of  law  from 
acknowledgment,  it  ought  to  contain  an  unqualified  admission  of  a  previous 
subsisting  debt,  which  the  party  is  liable  and  willing  to  pay.  If  there  are  cir- 
cumstances which  repel  the  presumption  of  a  promise  or  an  intention  to  pay,  if 
the  expression  is  equivocal  and  vague,  they  ought  not  to  go  to  a  jury  as  evi- 
dence of  a  new  promise  to  revive  the  original  cause  of  action.  Any  other  course 
would  open  all  the  mischiefs  against  which  the  statute  was  intended  to  guard 
innocent  persons,  Wetzell  v.  Bussard,  n  Wheat.  (U.  S.)  309;  Bell  v.  Morrison, 
I   Pet.  (U.  S.)  351;  and   an   acknowledgment  of  the  original  cause  of  action. 


174  STATUTES   OF   LIMITATION.  [CHAP.   VII. 

a  debt  being  evidence,  if  unrebutted,  of  a  new  promise  to  pay 
sufficient  to  avoid  the  statute. (a)  It  follows  that  three  questions 
usually  arise  as  to  any  alleged  acknowledgment :  First,  is  there 
an  admission  of  the  debt  in  question  ?  second,  is  such  admission 
narrowed  by  any  qualification  which  rebuts  the  presumption  of 
a  promise,  or  subject  to  any  condition  on  the  fulfilment  of  which 
the  implied  promise  is  dependent?  and,  third,  if  there  is  a  con- 
dition, has  it  been  satisfied  ?  On  the  first  question  there  is  con- 
siderable liberality  in  construing  a  reference  to  a  debt  as  an 
admission  Thus,  where  the  admission  was  in  the  following 
terms,  "  I  am  ashamed  the  account  has  stood  so  long,"  it  was 

accompanied  by  a  tefusal  to  pay,  unless  compelled  bv  law,  will  not  take  the 
case  out  of  the  statute.  Jenkins  v.  Boyle,  2  Cranch  C.  C.  120.  Any  offer  on 
the  part  of  the  debtor  operates  to  remove  the  bar  of  the  statute,  if,  fairly  inter- 
preted, it  amounts  to  a  promise  to  pay,  or  to  an  acknowledgment  of  the  debt  or 
of  some  debt;  as  if  the  debtor  says:  "  I  will  pay,  if  the  demand  is  proved." 
If  anything  is  added  which  negatives  a  promise  of  payment,  or  an  acknowledg- 
ment of  a  debt,  it  qualifies  every  expression;  as  if  A.  says  he  owes  the  debt. 
"  but  will  not  pay  it,  and  will  avail  himself  of  the  statute  of  limitations."  And 
if  the  promise  is  conditional,  the  remedy  is  not  revived  unless  a  condition  is 
performed.  Read  v.  Wilkinson,  2  Wash.  (U.  S.)  514.  An  action  may  be 
revived,  after  the  statute  has  barred  it,  either  by  a  clear  and  unconditional 
acknowledgment  of  the  debt,  from  which  the  law  can  imply  a  promise  to  pay. 
or  by  a  conditional  acknowledgment.  In  the  latter  case,  the  liability  attaches, 
under  the  conditions.  Kampshall  v.  Goodman,  6  McLean  (U.  S.)  189.  Where 
an  acknowledgment  of  a  debt  is  connected  with  a  condition  which  shows'lhat 
there  was  no  intention  to  pay  the  debt,  it  does  not  take  the  case  out  of  the 
statute.  If  the  acknowledgment  of  the  debt  is  coupled  with  a  proposition  to 
pay  it  partly  in  money  and  partly  in  property,  the  payment  can  only  be  enforced 
on  the  terms  proposed.  The  original  debt  is  not  revived,  and  it  is  considered 
only  as  affording  a  good  consideration  for  the  new  promise.  Lonsdale  v.  Brown, 
4  Wash.  (U.  S.)  148.  For  an  offer  of  comptomise,  not  sufficient  to  take  a  case 
out  of  the  statute  of  limitations,  see  Neil  v.  Abbott,  2  Cranch  (C.  C.)  193;  Ash 
v.  Hayman,  id    452;   Bank  of  Columbia  v.  Sweeny,  3  id.  293. 

(n)  See    Rumsey    v.    Settle's    Estate,  statute  has  attached.     Wald  v.  Arnold, 

120  Mich.  372;  Ward  v.  Jack,  172  Penn.  168  Mass.  134;  Cowhick  v.  Shingle,  5 

St.    416;   Nelson    v.    Hanson,   92   Iowa,  Wyo.  87,  93.      In   Illinois,   hoVvever,   it 

350;   First  Nat.  Bank  v.  Woodman,  93  is  held   that  if   the   debt   is  barred,  the 

Iowa,    668;    King    v,    Davis,  168    Mass.  acknowledgment     must    unqualifiedly 

m;    Wald   v.  Arnold,   id.  134;  Gilling-  admit  the  debt  to  be  due  and   unpaid. 

ham   v.    Brown  (Mass.),   60  N.   E.   122;  Ennis  v.  Pullman   Palace  Car  Co.,  165 

Braithwaile    v.    Harvey,  14  Mont.  208;  111.  I.6l,  175.     And  in   Pennsylvania  a 

Meitzler   v.    Todd,    12    Ind.    App.   381.  promise"  I  calculate  to  pay  it,  I  always 

No  distinction  exists  in  principle,  or  is  calculated    to   pay  it,"   has   been    held 

now   usually   marie,  between   the  legal  not    to    remove    the  bar  of   the   statute 

effect  of  acknowledgment  or  payment  after  it  has  run.     Boyle  v.  Henemuth, 

made    before   or  after   the    bar   of    the  1  Lack.  Jur.  329. 


§68.]  ACKNOWLEDGMENTS.  \J'> 

held  to  be  a  good  acknowledgment.1  In  another  case  2  the  debtor 
wrote  as  follows:  "  I  hope  to  be  in  Hampshire  very  soon,  when 
I  trust  everything  will  be  arranged  with  W.  \t\\c  creditorj 
agreeable  to  her  wishes;"  and  this  was  held  a  sufficient 
acknowledgment. 

Thus,  an  admission  of  the  debt  will  be  sufficient,  although  the 
exact   amount   payable   is   disputed,    or    remains  to   be  proved.3 

1  Cornforth  v.  Smkhard,  5  H.  &  N.  13. 

2  Edmonds  v.  Goater,  15  Beav.  415;  see  Quincey  v.  Sharpe,  1  Ex.  D.  72. 
3Colledge  z.  Horn,   3  Bing.  119;  Gardner  v.   M'Mahon,  3  Q.  B.  561;  Sidwell 

v.  Mason,  2  H.  &  N.  306.  Where  the  defendant  said  of  a  note,  "  lhat  he  had 
signed  the  same  with  his  son,  and  that  in  the  end  he  thought  he  should  have  it 
to  pay,"  il  was  held  that  this  was  an  unqualified  acknowledgment  that  the  note 
was  signed  by  him,  that  it  was  still  unpaid,  that  his  liability  was  then  subsist- 
ing, and  that  this  acknowledgment  look  the  case  out  of  the  statute  of  limita- 
tions; and  the  case  is  not  varied  by  the  expression,  "  that  enough  had  been 
paid  to  pay  the  debt,  if  it  had  been  paid  when  it  should  have  been."  Phelps  v. 
Williamson,  26  Vt.  230.  So,  where  payment  was  demanded  of  a  defendant, 
who  said:  "  [  supposed  it  was  paid  by  White,  by  an  arrangement;  tell  your 
father  to  put  White  up  to  pay  it;  if  he  does  not,  I  shall  have  to  pay  it,"  it  was 
held  that  this  was  an  admission  of  a  continuing  liability,  and,  with  proof  that 
White  had  not  paid,  took  the  case  out  of  the  statute.  Hayden  v.  Johnson,  26 
Vt.  768.  Where  a  request  being  made  to  a  defendant  to  pay  a  note  as  he  had 
agreed  to  do,  he  answered,  that  "  folks  do  not  always  do  as  they  agree,"  il  was 
held  that  this  was  not  evidence  of  a  new  promise  sufficient  to  take  the  note  out 
of  the  operation  of  the  statute.  Douglas  v.  Elkins,  28  N.  H.  26.  But  where  the 
maker  of  a  note  says  lo  the  payee,  that  if  he  will  wait  awhile  he  will  pay  the 
note,  and  that  he  will  pay  when  he  "  makes  a  raise,"  not  being  at  the  time  in 
a  condition  to  pay,  the  note  is  taken  out  of  the  statute.  Horner  v.  Starkey,  27 
111.  13.  A  promise  by  the  defendant,  that  he  will  settle  with  the  plaintiff  as 
soon  as  he  receives  his  pav  for  certain  work,  is  a  conditional  promise,  which 
does  not  waive  the  statute  unless  it  is  proved  that  he  has  received  his  pay. 
Mullelt  v.  Shrumph,  27  111.  107.  In  answer  to  an  application  for  a  debt  barred 
by  the  statute,  the  defendant  wrote:  "  I  have  received  a  letter  from  Messrs. 
P.  &  L.,  solicitors,  requesting  me  lo  pay  you  an  account  of  £40  gs.  bd.  I  have 
no  wish  to  have  anything  to  do  with  the  lawyers;  much  less  do  I  wish  to  deny 
a  just  debt.  I  cannot,  however,  get  rid  of  the  notion  that  my  account  with  you 
was  settled  in  1851;  but  as  you  declare  it  was  not  settled,  I  am  willing  to  pay 
you  £10  per  annum  until  it  is  liquidated.  Should  this  proposal  meet  with  your 
approbation,  we  can  make  arrangements  accordingly."  Held,  that  this  was 
not  such  an  absolute  unqualified  acknowledgment  and  unconditional  promise  to 
pay  as  to  take  the  case  out  of  the  statute.  Buckmasler  v.  Russell,  10  C.  B.  N. 
S.  745.  An  action  of  debt  upon  a  promissory  note  is  not  taken  out  cf  the 
statute,  by  an  acknowledgment  made  by  the  defendant,  within  six  years,  that 
the  debt  was  honest.  Rice  v.  Wilder,  4  N.  H.  336.  The  words,  "  the  debt  is 
an  honest  one,  but  I  have  paid  it,"  do  not  take  a  debt  out  of  the  statute. 
Tichenor  v.  Colfax,  4  N.  J.  L.  153. 


\-](y  STATUTES   OF    LIMITATION.  [CHAP.   VII. 

Hut  in  all  cases  the  acknowledgment  must  be  in  terms  so 
distinct   and   unqualified    that   a   promise  to  pay   upon    request 

or    .it     some    fixed    time    may    reasonably    be    inferred    iroin    it.' 
1  Oakson  t.  Beach,  3b  Iowa,  171;  Smith  v.  Fly,  24  Tex.  345;  Brown  v.  State 

I',  ink,  in  Ark.  134;  Walkins  v.  Steven.,  4  Barb,  (N.  Y.)  168;  BloodgOOd  v. 
Hi  lien,  8  N.  Y.  362.  In  some  cases  it  is  said  that  tin-  a<  knowledgment  must  be 
an  unequivocal  and  positive  recognition  of  a  subsisting  debt,  which  the  party 
1  liable  and  willing  t><  pay.  Purdy  v.  Austin,  3  Wend.  (N.  Y.)  187;  Allen  v. 
Webster,  15  id.  284;  Loomis  r.   Decker,  1  Daly  (N.  Y.  c.  P.)  180.     The  early 

•  asi  B  in  New  York  wen-  quite  conflicting,  and  inconsistent  will:  the  rule  as 
Stated.  Thus,  in  Danforth  v.  Culver,  11  Johns.  (N.  Y.)  14b,  where  the  defend- 
ant admitted  the  execution  of  the  note,  but  said  it  was  outlawed,  and  he  should 

plead  the  statute,  the  acknowledgment  was  held  insufficient.  Mut  in  Murray 
'  uter,  20  Johns.  (N.  Y.)  576,  where  the  claim  was  admitted  to  be  subsisting 
and  unsatisfied,  but  the  defendants  cxplh  itly  declared  that  tliey  did  not  regard 
themselves  as  liable  t hereon  bei-ause  of  the  lapse  of  time,  and  declared  their 
intention  to  plead  the  statute  in  case  their  offer  of  settlement  was  refused,  it 
was  held  sufficient  to  remove  the  bar.  In  some  cases  it  is  said  that  the 
acknowledgment  must  be  so  full  and  prn  ise  as  to  enable  the  court  to  apply  the 
terms  of  it  exactly  as  the  party  intended  they  should  be  applied,  Suter  v. 
Sheeler,  22  Penn.  St.  308;  Shiller  v.  Bremer,  23  id.  413;  Miller  v.  Baschore,  83 
id.  356;  Harbold  v.  Kuntz,  16  id.  210;  Webster  v.  Newbold,4i  id.  482;  Wolfens_ 
berger  v.  Young,  47  id.  516;  Strickland  v.  Walker,  37  Ala.  385;  Smith  v.  Fly,  24 
I  ex.  345;  Evans  v.  Carey,  29  Ala.  <)<>;  Yaw  v.  Kerr,  47  Penn,  St.  333;  Head  v. 
Manners,  5  J.  J.  Mar.  (Ky.)  255;  Mell  v.  Morrison,  1  Pet.  (U.  S.)  351;  Newcomb 
v,  Niel,  Harp.  (S,  C.)  355;  Harrison  v.  Handley,  1  Bibb  (Ky.)  443;  and  of  such 
.i  1  haracter  lhat  a  promise  to  pay  can  be  fairly  and  naturally  implied,  Moshier 
.  Hubbard,  13  Johns.  (N,  Y.)  510;  Chambers  v.  Garland,  3  Green  (Iowa)  322; 
Wake-man  t.  Sherman,  o.  N.  Y.  88;  Young  v.  Monpoey,  2  Bailey  (S.  C.)  278; 
Moore  v.  Bank  of  Columbia,  6  Pet.  (U.  S.)  86;  Pritchard \  v.  Hamell,  1  Wis.  131; 
Sands  V.  Gelston,  is  Johns.  (N.  Y.)  511;  Merghaus  v.  Calhoun,  6  Watts  (Men n.) 
2IQ;  Ash  v.  Matton,  3  S.  tV  K.(IYnn.)  |ob;  (.rant  r.  Ashley,  12  Ark.  762.  An 
express  pi  on  .ise,  except  where  the  statute  expressly  so  provides,  is  not  neces- 
sary.  It  is  enough  if  the  admission  of  liability  implied  a  promise  to  pay. 
Minion  r-.  Wharton,  4  Harr.  (Del.)  296;  Elliotts.  Leake,  5  Mo.  208;  Lee  v.  Polk, 

I  Ml  I  "i  I  (S.  C)  21s;  Keener  v.  Crull,  10  111.  l8<j;  Bulloch  V.  Smith,  15  Ga.  395 1 
Harwell    v.    McCulloch,    2   Oven.   (Trim.)  275.      The  acknowledgment    must   be 

consistent  with  a  promise  to  pay.  Guier  v,  Pearch,  2  Browne  (Menu.)  35; 
Bailey  v.  Bailey,  11  S.  &  R.  (Menu.)  195;  McClelland  v.  West,  59  Penn.  St.  487. 

II  thru-  [a  an  acknowledgment  of  a  subsisting  debt,  and  nothing  to  rebut  the 

n  1  ol  an  intention  to  pay  it,  ii  is  Buffii  lent.  "  '1'he  slightest  ai  knowledg- 
ment,"  Baj  Lord  Mansfield,  in  Trueman  v.  Fenton,  2  Cowp,  550,  "  has  been 
held  sufficient,  as  saying,  '  prove  your  debt,  and  I  will  pay  you,'  '  I  am  ready 
1  ,  .,,  ount,  but  nothing  is  due  you.'     And  mui  h  slightei  acknowledgments  than 

will  take  the  debt  out  of  the  statute."  "  I  am  sure  I  don't  owe  you;  but, 
if  1  d  1.  I  am  willing  t"  pay.'  Steele  ...  Towne,  28  Vt.  771;  Paddock  v.  Colby, 
1     Id     1  ■',.     "  I  promise  not  to  plead  the  statute  of  limitations."     Stearns  v. 

Vt.  678;  Lowry  v.  Dubose,  2  M.iiley  (S.  C.)  425;  Glenn  v.  M'Cullough, 


§  68.]  ACKNOWLEDGMENTS.  1 77 

It  must  be  clear  and  explicit,  and  not  incumbered  with  any 
conditions.1 

Harp.  (S.  C.)  484;  Lindsay  v.  Jamison,  4  McCord  (S.  C.)  93.  "  If  the  note  has 
not  been  paid,  I  will  settle  it."  Sothoron  v.  Hardy,  8  G.  &  J.  (Md.)  133;  Rich- 
mond v.  Fugna,  11  Ired.  (N.  C.)  L.  445.  Where  a  defendant  said,  on  production 
of  a  note  against  him,  "  It's  as  good  as  money,"  Arnold  v.  Dexier,  4  Mason 
(U.  S.)  122,  or  "  my  notes  never  outlaw,"  but  that  there  was  some  other  matters 
to  be  settled,  and  he  would  be  down  in  a  few  days  and  settle  it,  Phelps  v. 
Sleeper,  17  N.  H.  332,  —  have  all  been  held  sufficient.  In  Edmonds  v.  Goater, 
15  Beav.  415,  the  defendant  wrote,  in  answer  to  an  application  for  payment  of 
a  debt,  "  I  hope  to  be  in  Hampshire  very  soon,  when  I  trust  everything  will  be 
arranged  with  W.  (the  creditor)  agreeable  to  her  wishes;  "  and  that  was  held  a 
sufficient  promise.  So  in  Collis  v.  Stack,  1  H.  &  N.  605,  this  answer  to  an 
application  for  payment  was  held  sufficient:  "  I  shall  repeat  my  assurance  to 
you  of  the  certainty  of  your  being  repaid  your  generous  loan.  Let  matters 
remain  as  they  are  for  a  short  time  longer,  and  all  will  be  right.  The  works  I 
have  been  appointed  to.  but  they  are  not  yet  worked  with  the  full  compliment 
of  labor;  this  term  will  decide  the  matter."  Tanner  v.  Smart.  6  B.  &  C.  603, 
put  a  conditional  promise,  with  proof  of  ability  to  pay,  on  the  same  footing  as 
an  absolute  promise. 

1  A  new  promise  is  requisite  to  remove  the  bar  of  the  statutes  and  although  it 
will  be  implied  by  the  law.  from  an  unqualified  acknowledgment  of  the  exist- 
ence of  the  debt,  yet  such  will  not  be  the  case  when  the  acknowledgment  is 
qualified,  nor  when  it  is  accompanied  by  an  express  declaration  of  inability  or 
unwillingness  to  pay.  Fries  v.  Boisselet,  9  S.  &  R.  (Penn.)  128;  Church  v. 
Feterow,  2  Penn.  301;  Hay  v.  Kramer,  2  W.  &  S.  (Penn.)  137;  Bailey  v.  Bailey, 
14  S.  &  R.  (Penn.)  195;  Bangs  v.  Hall,  2  Pick.  (Mass.)368;  Bradley  v.  Field,  3 
Wend.  (N.  Y.)  272;  Hancock  v.  Bliss,  7  id.  267;  Allen  v.  Webster,  15  id.  284; 
Gaylord  v.  Van  Loan.  id.  308;  Bailey  v.  Crane,  21  id.  324;  Danforth  v.  Culver, 
11  Johns.  (N.  Y.)  146.  There  must  be  nothing  in  the  language  used  that  repels 
the  inference  of  a  promise  to  pay;  if  there  is,  the  acknowledgment  is  insuffi- 
cient. Thus,  if  a  debtor  pays  or  promises  to  pay  a  part  of  his  debt,  under  an 
agreement  with  his  creditor  that  it  shall  be  in  full  satisfaction  of  the  whole 
claim,  such  payment  or  promise  will  not  prevent  the  operation  of  the  statule 
upon  the  balance  of  the  debt.  Bowker  v.  Harris,  30  Vt.  424.  So  where  a 
debtor,  while  denying  the  justness  of  an  account,  said  that  "  if  his  creditor 
would  swear  to  it,  he  would  pay  it,"  and  "  that  if  it  was  just,  he  would  pay  it," 
these  words  were  held  not  such  acknowledgments  as  would  take  the  debt  out 
of  the  statute.  Goodwin  v.  Buzzell,  35  Vt.  9.  See  Galpin  v.  Barney,  37  Vt.  627. 
The  naked  acknowledgment  of  an  existing  liability  is  not  such  a  declaration  of 
willingness  to  remain  liable  as  to  imply  a  promise  to  pay;  as  where  the  defend- 
ant, on  being  requested  by  the  plaintiff  to  renew  notes  on  which  the  statute  had 
run,  replied:  "  I  will  come  up  soon  and  have  a  general  settlement  of  accounts, 
and  if  all  accounts  are  all  right,  other  matters  will  be  all  right,"  there  being  no 
"  other  matters  "  between  the  parties  than  the  notes;  and,  on  a  repetition  of 
the  request  a  year  atterwards,  replied:  "  We  have  a  long  string  of  accounts  to 
look  over;  if  I  find  those  all  right  and  satisfactory,  the  notes  will  be  all  right." 
Brayton  v.  Rockwell,  41  Vt.  621;  Higdon  v.  Stewart,  17  Md.  105;  Parsons  v. 
Northern,  etc..  Iron  Co.,  38  111  430;  Cambridge  v.  Hobart,  10  Pick.  (Mass.)  232; 
[stats,  of  LIM.  —  12] 


178  STATUTES    OF    LIMITATION.  [CHAP.   VII. 

It  is  not  necessary  that  the  promise  should  be  actual  or  express, 
provided  the  other  necessary  facts  are  shown.      A  clear,  distinct, 

Penn  v.  Crawford,  16  La.  Ann.  255;  Thornton  v.  Crisp,  22  Miss.  52;  Kelly  v. 
Sanborn,  9  N.  II.  46;  Butterfield  v.  Jacobs,  15  id.  140;  Brackett  v.  Mountlort. 
12  Me.  72;  Fischer  v.  Hess,  9  B.  Mon.  (Ky.)  614;  Conwell  v.  Buchanan,  7 
Blackf.  (Tnd.)  537;  Sloan  v.  Sloan,  n  Ark.  29;  Mills  v.  Taber,  5  Jones  (N.  C.)  L. 
4.12;  Ballenger  v.  Barnes,  3  Dev.  (N.  C.)  L.  460;  Gilmer  v.  McMurray,  7  Jones 
(N.  C.)  L.  479;  Taylor  v.  Stedman,  11  Ired.  (N.  C.)  L.  447.  A  promise  to  remove 
the  bar  of  the  statute  must  be  a  promise  to  pay  a  debt.  A  promise  to  settle 
with  the  claimantis  not  sufficient.  Bell  v.  Crawford.  8  Gratt.  (Va.)  no.  A  letter 
from  the  defendant  to  the  plaintiff  in  which  he  denies  that  he  was  ever  liable 
to  the  plaintiff's  demand,  but  states  that  another  person  is  responsible,  by 
whom  he  takes  it  for  granted  payment  has  not  been  made,  and  of  whom  he 
offers  to  furnish  the  plaintiff  with  evidence  to  recover,  will  not  avoid  the  act. 
Brown  v.  Campbell,  1  S.  &  R.  (Penn.)  176.  Where  the  defendant  admits  that 
he  has  received  the  money  which  the  pUintiff  claims,  but  denies  the  validity  of 
the  claim,  such  acknowledgment  is  not  evidence  of  a  new  promise  so  as  to  take 
a  case  out  of  the  statute.  Sands  v.  Gelslon,  15  Johns.  (N.  Y.)  511;  Marshall  r. 
Dalliber,  5  Conn.  486;  Bell  v.  Rowland,  Hard.  (Ky.)  301;  Ferguson  v.  Taylor,  1 
Hayw.  (N.  C.)  92. 

Where  the  defendant  says,  that  if  the  plaintiff  has  a  claim  either  at  law  of 
equity,  he  will  compromise  the  business,  or  submit  it  to  arbitration,  but,  at  the 
same  time,  denies  that  he  has  any  claim  either  at  law  or  equity:  this  is  not  suf- 
ficient to  take  the  case  out  of  the  statute.  Sands  v.  Gelston,  15  Johns  (N.  Y)  84. 
In  this  case  Spencer,  J.,  said:  "  I  am  bound  by  authority  to  consider  the 
acknowledgment  of  the  existence  of  a  debt  within  six  years  before  the  suit  was 
brought,  as  evidence  of  a  promise  to  pay  the  debt.  But  I  insist  that  if,  at  the 
time  of  the  acknowledgment  of  the  existence  of  the  debt,  such  acknowledgment 
is  qualified  in  a  way  to  repel  the  presumption  of  a  promise  to  pay,  then  it  will  not 
be  evidence  of  a  promise  sufficienl  to  revive  the  debt,  and  take  it  out  of  l  he  statute. 
In  consonance  with  this  distinclion,  I  take  it,  the  case  of  Danforth  v.  Culver,  n 
Johns.  (N.  Y.)  146,  and  Lawrence  v.  Hopkins,  13  id.  288,  were  decided  in  this 
courl."  Roosevelt  7/.  Mark,  6  Johns.  (N.  Y.)  Ch.  266.  An  offer  by  a  defendant 
to  compromise  a  suit,  which  is  rejected,  cannot  be  made  use  of  to  take  the  case 
out  of  the  statute  of  limitations.  Lawrence  v.  Hopkins,  13  Johns.  (N.  Y.)  288; 
Murray  v.  Coster,  4  Cow.  (N.  Y.)  635.  An  acknowledgment  to  take  a  case  out 
of  the  statute  of  limitations  must  be  such  a  one  as  is  consistent  with  a  promise 
to  pay.  Guier  v.  Pearce,  2  Browne  (Penn.)  35;  Read  v.  Wilkinson,  2  id.  48; 
Scull  v.  Wallace,  15  S.  &  R.  (Penn.)  231.  The  statute  of  limitations  is  a  good 
plea  in  bar,  in  a  court  of  equity  as  well  as  at  law,  unless  there  "  be  something 
Special  in  the  case,  or  some  new  equity  to  form  an  exception  to  this  genera! 
1  "   and   where  to  a  suit  at  law  the  defendant  had  pleaded  the  statute,  and 

the  plaintiff  filed  a  bill  of  discovery,  with  a  view  to  enable  him  to  show  a  promise 
within  six  years,  it  was  held  that  the  defendant  was  not  bound  to  discover  any- 
thing ih  it  nroul  1  destroy  ihe  effect  of  his  plea  at  law.  Lansing  v.  Starr,  2  Johns. 
(N.  Y.)  Ch.  150,  151;  Kane  v.  Bloodgood,  7  id.  00.  In  Tichenor  v.  Colfax,  3  N. 
J.  F..  155,  Kirk-patrick,  C.  J.,  said:  "  The  pleading  of  the  statute  of  limitations 
never  <  alls  in  question  the  justness  of  the  debt  originally;  it  only  raises  the 
I  Ription  that  the  same  has  been  satisfied  or  paid;  and  to  this  presumption 


§  68.]  ACKNOWLEDGMENTS.  179 

and  unequivocal  acknowledgment  of  a  debt  is  sufficient  to  take  a 
case  out  of  the  operation  of  the  statute.      It  must  be  an  admis 

the  statute  gives  effect  by  taking  away  the  party's  remedy  to  recover.  For  the 
defendant,  therefore1,  to  say  that  the  debt  was  just,  but  that  he  had  paid  it,  was 
no  admission  of,  or  assumption  to  pay,  an  existing  debt, but  the  contrary."  An 
acknowledgment  of  the  original  justice  of  the  claim  is  not  sufficient;  "  it  must 
go  to  the  fact  that  it  is  still  due."  Clementson  v.  Williams,  8  Cranch  (U.  S.) 
72,  74;  Wetzell  v.  Bussard,  11  Wheat.  (U.  S.)  314,  315;  Thompson  v.  Peter,  12 
id.  565;  Bell  v.  Morrison,  1  Pet.  (U.  S.)  351;  Bangs  v.  Hall,  2  Pick.  (Mass.)  368; 
Baxter,  Adm'r,  etc.  v.  Penniman,  8  Mass.  133;  Lord  v.  Shaler,  3  Conn.  131; 
Marshall  v.  Dalliber,  5  Conn.  480;  Tichenor  v.  Colfax,  3  N.  J.  L.  153;  Jones  v. 
Moore,  5  Binn.  (Penn.)  576;  Cowan  v.  Magauran,  1  Wall.  C.  C.  66;  Harrison  v. 
Handley,  1  Bibb  (Ky.)  443;  Ormsby  v.  Letcher,  3  id.  269;  Bell  v.  Rowland, 
Hard.  (Ky.)  301;  Roosevelt  v.  Mark,  6  Johns.  (N.  Y.)  290.  The  same  rule  holds 
as  to  acknowledgments  to  repel  the  presumption  of  payment  aiising  from  lapse 
of  time  in  cases  not  within  the  statute.  Boyd  v.  Grant,  13  S.  &  R.  (Pa.)  124. 
A  mere  indorsement  made  on  a  note  by  the  plaintiff  himself,  without  the 
knowledge  of  the  defendant,  or  proof  of  payment  of  the  sum  indorsed,  will  not 
take  the  demand  out  of  the  statute  of  limitations.  Whitney  v.  Bigelow,  4  Pick. 
(Mass.)  no.  Where  the  maker  of  a  promissory  note  delivered  goods  to  the 
holder  to  be  sold,  and  the  proceeds  appropriated  towards  the  payment  of  the 
note,  and  a  sale  of  some  of  the  goods  was  not  effected  until  nearly  six  years 
after,  it  was  held,  that  if  the  proceeds  were  indorsed  upon  the  note  within  a 
reasonable  time,  it  would  be  considered,  in  reference  to  the  statute,  as  a  pay- 
ment made  by  the  maker's  order.  But  if  the  holder,  without  any  assent  on  the 
part  of  the  maker  or  any  notice  to  him,  makes  the  sale  and  indorsement  after  a 
reasonable  time  has  elapsed,  this  will  not  take  the  note  out  of  the  statute. 
Porter  v.  Blood,  5  Pick.  (Mass.)  54.  In  Fuller  v.  Hancock,  1  Root  (Conn.)  238, 
241,  the  court  said,  that  "  an  indorsement  upon  a  bond  doth  not  save  it  out  of 
the  statute  of  limitation."  An  agreement  of  a  debtor  that  a  settlement  made 
by  the  creditor  and  a  third  person  should  be  examined  by  either  party,  will  not 
take  a  case  out  of  the  statute.  Ormsby  v.  Letcher,  3  Bibb  (Ky.)  270.  A  vote 
passed  at  a  town  meeting,  appointing  a  committee  to"  settle  the  dispute" 
between  the  town  and  the  plaintiff,  was  held  not  to  take  the  plaintiff's  demand 
out  of  the  statute  of  limitations.  Fiske  v.  Needham,  n  Mass.  452.  A  debt 
which  is  barred  by  the  statute  is  not  revived  by  a  clause  in  a  will  ordering  the 
testator's  just  debts  to  be  paid.  Smith  v.  Porter,  1  Binn.  (Penn.)  209;  Roosevelt 
v.  Marks,  6  Johns.  (N.  Y.)  Ch.  266.  Creating  a  trust  upon  a  personal  estate  by 
will,  for  the  pa>ment  of  debts,  will  not  revive  a  debt  barred  by  the  statute  of 
limitations.  Campbell  v.  Sullivan,  Hard.  (Ky.)  17;  Ex  parte  Dewdney,  Ex 
parte  Seaman,  15  Ves.  488;  Ex  parte  Roffey,  19  id.  470.  A  debt  tarred  by  the 
statute  is  not  revived  by  a  direction  in  the  debtor's  will,  that  certain  property 
be  sold,  "  and  with  the  proceeds  thereof,  after  paying  my  debts,  that  they 
reedem,"  etc.  W'alker  v.  Campbell,  1  Hawks  (N.  C.)  304.  A  trust  created  by 
will  for  the  payment  of  debts,  by  a  general  direction  that  all  the  testator's  debis 
shall  be  paid,  extends  only  to  such  as  he  was  bound  in  conscience  to  pay;  there- 
fore, an  undertaking  which  is  merely  nudum  pactum  is  not  comprehended,  and 
may  be  barred  by  the  act.  Chandler  v.  Hill,  2  H.  &  M.  (Va.)  124.  A  provision 
in  a  will,  that  the  money  arising  from  the  sale  of  the  testator's  personal  prop- 


ISO  STATUTES   OF   LIMITATION.  [CHAP.  VII. 

sion  consistent  with   a   promise   to   pay;    and    if   that    condition 

erty,  after  payment  of  his  just  debts,  shall  be  applied  to  certain  purposes,  does 
not  create  a  trust  for  the  payment  of  the  debts,  nor  take  any  debt  out  of  the 
operation  of  the  statute.  Brown  v.  Griffiths,  6  Munf.  (Va.)  450.  Burke  v. 
Jones,  2  V.  &  B.  275,  holds  that  a  devise  in  trust  for  payment  of  debts  does 
not  revive  a  debt  upon  which  the  statute  of  limitations  has  taken  effect  by  the 
expiration  of  the  time  before  the  testator's  death.  As  to  the  argument  urged, 
viz.,  that  a  contrary  rule  existed  in  equity,  he  said:  "  No  case  has  been  cited 
within  the  period  of  half  a  century  in  which  such  a  rule  is  stated  as  existing, 
except  for  the  purpose  of  complaining  of  it.  It  was  justly  observed  that  those 
complaints  are  a  recognition  of  the  rule  bv  very  high  authorities;  and  there  is 
certainly  considerable  authority  for  concluding  that  such  a  rule  has  been  under- 
stood as  prevailing,  that  a  devise  of  real  estate  for  the  payment  of  dedts  would 
let  in  debts  barred  by  the  statute.  The  last  time  it  appears  in  print,  in  the  case 
of  Oughterloney  v.  Powis,  Amb.  231,  Lord  Hardwicke  did  not  consider  it  so 
established  that  it  should  be  acted  upon  without  consideration,  expressing  sur- 
prise how  such  a  rule  could  be  established.  It  has  received  the  decided  disap- 
probation of  Lord  Kenyon  and  Lord  Alvanle> ;  and  in  Ex  parte  Dowdney,  15 
Ves.  477,  497,  such  a  rule  was  apparently  disapproved.  In  Roosevelt  v.  Mark, 
supra,  Kent,  C.  J.,  approved  Burke  v.  Jones,  and  said:  "  This  decision  appears 
to  rne  well  founded  upon  principle,  and  upon  the  construction  of  the  authori- 
ties, and  to  put  an  end  to  this  litigious  question,"  deciding  that  a  devise  of  real 
and  personal  estate  for  the  payment  of  just  debts  does  not  survive  a  debt  barred 
by  the  statute.  Where  a  testator  devised  a  large  real  and  personal  estate  to  his 
wife  and  children;  charged  the  portion  of  one  of  his  sons  with  the  payment  of 
£1,500  sterling  towards  his  debts;  directed  sundry  tracts  of  land  to  be  sold,  and 
the  moneys  arising  therefrom,  as  ^ell  as  from  loan-office  certificates,  or  other- 
wise (after  payment  of  his  just  debts),  to  be  equally  divided  among  his  six  sons, 
on  a  bill  brought  by  one  of  his  creditors,  the  statute  being  pleaded,  and  the  com- 
plainant not  having  shown  that  he  came  within  any  of  the  exceptions  of  the  act, 
it  was  held  that  the  statute  did  not  prevent  a  recovery  of  so  much  of  the  specific 
fund  as  remained  undisposed  of,  but  that  it  would  be  a  bar  to  a  recovery  out  of 
the  general  fund.  Lewis  v.  Bacon,  3  H.  &  M.  (Va.)  89.  Swann  v.  Sewell,  2  B. 
&  Aid.  75q,  was  an  action  of  assumpsit  on  a  promissory  note.  Plea,  1st,  the 
general  issue,  2d,  the  statute  o(  limitations;  but  there  was  no  plea  or  notice  of 
set-off.  It  being  proved  that  on  the  plaintiff's  showing  the  defendant  the  note 
within  six  years,  the  latter  said,  "  You  owe  me  more  money;  I  have  a  set-off 
against  it,"  it  was  held  that  that  was  not  a  sufficient  acknowledgment  within 
six  years  to  take  the  case  out  of  the  statute.  Ilolroyd,  J.,  said:  "  How  can  it 
be  contended  that  an  assertion  by  a  defendant  that  he  has  a  good  defense  is  an 
acknowledgment  of  the  debt?"  Where  a  party  revives  a  debt  barred  by  the 
statute,  by  paying  it  into  court,  but  at  the  same  time  refuses  to  pay  interest. 
Bui  h  payment  of  the  principal  does  not  revive  the  claim  for  interest.  Collver  v. 
Willock,  4  Bintj.  315.  Where  the  defendant,  being  arrested  on  a  note,  said  that 
lie  owed  the  plaintiff  the  money  and  intended  to  have  paid  him,  but  that  he 
had  taken  ungentlemanly  steps  to  get  it,  and  as  he  had  taken  these  steps,  he 
(defendant)  would  keep  him  out  of  it  as  long  as  he  could,  it  was  held  that  this 
wis  ti'.t  such  an  acknowledgment  as  would  take  the  case  out  of  the  statute. 
Fries  v.  Boisselel,  9  S.  &  R.  (Penn.)  12S.     After  suit  orought  on  a  promissory 


§68.]  ACKNOWLEDGMENTS.  l8l 

exists,  the    law  will    imply   a   promise   without   its   having   been 

note,  the  defendant  admitted  he  had  given  such  a  note,  bat  said  he  had  paid  it. 
Held,  that  this  was  not  such  an  acknowledgment  of  a  subsisting  debt  as  will 
avoid  the  plea  of  the  statute.  Smith  v.  Freel,  Addis.  (Penn.)  291.  Though  a 
slight  acknowledgment  of  the  debt,  if  sufficient  to  iaise  an  implied  promise  to 
pay  it,  will  take  a  case  out  of  the  statute,  yel  if  the  debtor  qualifies  his  acknowl- 
edgment in  such  a  manner  as  to  show  that  it  was  his  intention  not  to  pay,  the 
statute  will  take  effect;  and  where  a  debtor,  on  being  called  on  for  payment  of  a 
promissory  note  more  than  six  years  alter  it  became  due,  said,  that  he  was  sur- 
prised at  the  demand;  that  he  owed  him  nothing  on  the  account  mentioned,  and 
referred  him  lo  his  final  discharge  under  the  insolvency  act,  March  13,  1812,  it 
was  held  that  the  debt  was  barred  by  the  act,  although  the  act  of  1812  was 
unconstitutional.  Hudson  v.  Carey,  11  S.  &  R.  (Penn.)  10;  Bailey  v.  Bailey,  14 
id.  195;  Eckert  v.  Wilson,  12  id.  303.  In  an  action  against  an  executor,  by  a 
child  of  the  testator,  for  services  rendered  to  the  latter,  to  which  the  statute  was 
pleaded,  certain  clauses  in  the  will  were  held  not  to  prevent  the  statute  from 
running.  Cresman  v.  Caster,  2  Browne  (Penn.)  123;  Lance  v.  Parker,  1  Mills's 
Const.  Cl.  (S.  C  )  168;  Taylor  v.  M'Donald,  2  id.  178;  Gray  v.  Kernahan,  2  id.  65. 
In  Coltman  t.  Maish,  3  Taunt.  380,  where  the  defendant  pleaded  the  statute, 
and  the  evidence  at  the  trial  was,  that  the  defendant  had  said  to  the  plaintiff,  "  I 
owe  you  not  a  farthing,  for  it  is  more  than  six  years  since,"  it  was  held  that 
this  was  nol  to  be  left  to  the  jury  as  evidence  of  a  sufficient  acknowledgment  to 
take  a  debt  out  of  the  statute.  See  Hellings  v.  Shaw,  7  Taunt.  608;  Beale  v. 
Nind,  4  B.  &  Aid.  568.  No  intention  to  waive  the  protection  of  the  statute  can 
be  inferred  from  the  declarations  of  payment  made  by  the  defendant,  even  if 
those  delarations  are  proved  untrue.  Marshall  v.  Dalliber,  5  Conn.  488;  Bailey 
v.  Bailey,  14  S.  &  R.  (Penn.)  195,  where  the  defendant  paid  money  into  court 
generally,  it  was  held  that  such  payment  did  not  take  the  case  out  of  the  statute. 
See  Long  v.  Greville,  3  B.  &  C.  10;  Shaddick  v.  Bennett.  4  id.  769;  A'Court  v. 
Cross,  3  Bing.  329.  In  Tanner  v.  Smart,  6  B.  &  C.  603,  Lord  Tenterden,  C.  J., 
said:  "  There  are,  undoubtedly,  authorities  that  the  statute  is  founded  on  the 
presumplion  of  payment,  that  whatever  repels  that  presumption  is  an  answer  to 
ihe  statute,  and  that  any  acknowledgment  which  repels  that  presumption  is,  in 
legal  effect,  a  promise  to  pay  the  debt;  and  that  though  such  an  acknowledg- 
ment is  accompanied  with  only  a  conditional  promise,  or  even  a  refusal  to  pay. 
the  law  considers  the  condition  or  refusal  void,  and  considers  the  acknowledg, 
ment  of  itself  an  unconditional  answer  to  the  statute;  and  if  these  authorities 
be  unquestionable,  the  verdict  which  has  been  given  for  the  plaintiff  ought  to 
sland,  and  the  rule  for  a  new  trial  ought  to  be  discharged.  I  refer  to  the  cases 
of  Yea  v.  Fouraker,  2  Burr.  1099;  Lloyd  v.  MaunJ,  2  T.  R.  760;  Bryan  v.  Horse- 
man, 4  East,  599;  Leaper  v.  Tatton,  16  East,  420;  Dowthwaite  v.  Tibbut,  5 
M.  &  S.  75;  Frost  v.  Bengough,  1  Bing.  266;  Rowcroft  v.  Lomas,  4  M.  &  S.  457; 
Swan  v.  Sovvell,  2  B.  &  Aid.  759;  Mountstephen  v.  Brooke.  3  B.  &  Aid.  141. 
In  assumpsil  for  fees  as  an  attorney  at  law,  the  defendant  pleaded  the  statute 
of  limitations  in  bar  of  the  action;  at  the  trial  the  plaintiff  proved  a  letter 
received  from  the  defendant  after  the  services  performed,  but  more  than  six 
years  before  the  commencement  of  the  suit,  in  which  he  promised  to  pav  for 
the  services  claimed  in  this  suit,  and  also  proved  that  within  six  years  past  the 
defendant  said   to  him,  "  If  I  owe  you  anything  on  that  claim  I  will  pay  you; 


182  STATUTES   OF   LIMITATION.  [CHAP.   VII. 

actually  or  expressly  made.1  There  must  not  be  any  uncertainty 
as  to  the  particular  debt  to  which  the  admission  applies.  It  must 
be  so  distinct  and   unambiguous  as  to  remove  all  hesitation  in 

but  I  owe  you  nothing."  Held,  that  ihis  was  not  sufficient  evidence  of  a  new 
promise  to  avoid  the  bar  of  the  stalute.  Parley  vl  Little,  3  Me.  97.  See  Beale 
v.  Nind,  4  B.  &  Aid.  566;  Rowcroft  v.  Lomas,  4  M.  &  S.  457.  A  qualified 
admission  by  a  party  who  relies  on  any  objection,  which  would  at  any  lime 
have  been  a  good  defense  to  the  action,  does  not  take  a  case  out  of  the  statute. 
De  La  Torre  v.  Barclay,  1  Starkie,  6.  See  Hellings  v.  Shaw,  7  Taunt.  608. 
A  mere  demand  of  a  debt,  without  process,  or  any  acknowledgment,  is  not  suffi- 
cient to  take  the  case  out  of  I  he  statute.  Hodle  v.  Healey,  1  V.  &  B.  536.  In 
Scull  v.  Wallace,  15  S.  &  R.  (Penn.)  231,  the  question  was  left  undetermined, 
whether  an  administrator  may  charge  the  estate  of  his  intestate,  by  refusing  to 
plead  the  act  of  limitations,  when  his  co-administrator  insists  on  pleading  it, 
yet  it  was  decided  that  if  one  stands  neutral  the  others  may  plead  it.  A  slight 
acknowledgment  of  an  existing  debt  is  sufficient  to  take  the  case  out  of  the 
statute,  because  the  jury  may  and  ought  to  presume  a  new  promise;  but  the 
acknowledgment  is  to  be  taken  altogether,  and  if,  on  the  whole,  it  is  incon- 
sistent with  a  new  promise,  no  new  promise  shall  be  implied,  and  the  statute 
shall  bar.  Ibid.  In  England  all  questions  as  to  the  sufficiency  of  acknowledg- 
ments to  revive  claims  barred  by  the  statute  were  put  at  rest  by  Stat.  8  Geo.  IV. 
1  Hall  v.  Bryan,  50  Md.  194.  There  must  be  something  more  than  a  mere 
mention  of  the  debt,  without  questioning  the  indebtedness.  There  must  be  an 
unqualified,  direct,  admission  of  a  present  subsisting  debt.  Hanson  v.  Towle, 
19  Kan.  273.  An  acknowledgment  need  not  be  wholly  by  words,  but  may  be 
established  by  any  act  or  words  that  necessarily  presuppose  or  admit  the  exist- 
ence of  a  debt  and  an  obligation  to  pay  it.  Bamfield  v.  Tupper,  7  Exch.  27: 
Purdon  v.  Purdon,  10  M.  &  W.  562.  Thus,  in  the  cases  cited  supra,  as  well  as 
those  following,  the  payment  of  interest  was  held  to  operate  as  an  admission 
of  a  subsisting  debt  still  due,  sufficient  to  remove  the  bar  of  the  statute.  See 
Sanford  v.  Hayes,  19  Conn.  591;  Clemenison  v.  Williams,  8  Cranch  (U.  S.)  72; 
Lord  v.  Shaler,  3  Conn.  151.  This  is  so  whether  the  interest  accrued  before  or 
after  the  principal  was  barred  by  the  statute.  Fryeburg  v.  Osgood,  21  Me. 
176. (a)  But  payment  of  the  principal  will  not  operate  as  an  acknowledgment 
of  the  interest.  Collyer  v.  Willcock,  4  Bing.  313.  So  a  payment  on  account,  or 
a.  part  payment  of  the  principal  of  a  debt,  will  generally  operate  as  an  acknowl- 
edgment of  the  whole  debt.  Hooper  v.  Stephens,  4  Ad.  &  El.  71;  Smith  v.  Sims, 
9  Ga.  80;  Siblev  v.  Lambert,  30  Me.  253;  Raildan  v.  Tobey,  11  How.  (U.  S.)  493; 
Strong  v.  McCormick,  5  Vt.  338;  Turney  v.  Dodwell,  3  El.  &  Bl.  136;  Jones  v. 
Jones,  21  N.  H.  219;  Ilsley  v.  Jewett,  2  Met.  (Mass.)  168;  State  Bank  v.  Waddy, 
S  Ark.  348;  Badger  v.  Arch,  10  Exch.  333.  And  generally  all  the  attendant  cir- 
cumstances should  be  considered  in  order  to  arrive  at  the  deblor's  real  intention 
by  what  he  said. 

(a)   Part     payment    of    the    principal  acknowledgment  of  indebtedness  is  un- 

and    payment  of  interest  stand  on  the  qualified,  there  is  implied  a  promise  to 

same  footing  as  an  acknowledgment  of  pay  interest  at  the  original  rate  as  well 

an    existing    obligation.      Meitzler    v.  as  the   principal.      Whiteman    v.    Mc- 

Todd;    (2    Ind,    App.   381;    Bennetl    v.  Farland,  68  111.  App.  295. 
Bain],    67    111.    App.    422.      When    the 


§68.]  ACKNOWLEDGMENTS.  1 83 

regard   to   the  debtor's   meaning.1     It   is   not   essential   that  the 

1  Palmer  v.  Gillespie,  95  Penn.  St.  340.  In  Fiske  v.  Hibbard,  45  N.  Y.  Sup'r 
"CL  331,  where  the  debtor  wrote  the  plaintiff  as  follows:  "  I  am  well  aware  that 
I  owe  you  for  money  borrowed.  As  you  have  the  figures,  I  wish  you  would  at 
your  leisure  make  out  a  statement  of  what  you  consider  my  indebtedness  to 
you,  and  send  it  to  me.  resting  assured  that  in  all  money  matters  I  desire  to  act 
honesily  toward  everybody;"  and  it  was  »held  that  this  was  a  sufficient 
acknowledgment  of  a  present  indebtedness  from  which  a  promise  to  pay  may 
be  implied.  In  Webb  v.  Carter,  62  Ga.  415,  a  letter  from  the  defendant  to  the 
plaintiff  enclosing  five  dollars,  to  be  indorsed  on  the  note,  and  slating,  "  My 
son  James  will  wind  up  my  business,  with  instructions  to  pay  you,"  was  held 
10  be  a  written  acknowledgment  sufficient  to  support  a  promise  to  pay.  But  in 
Eckford  v.  Evans,  56  Miss.  18,  a  letter  as  follows,  "  I  am  going  to  Aberdeen 
to-morrow,  and  will  send  fifty  dollars,  which  is  all  I  can  spare  at  present,"  was 
held  too  indefinite  to  affect  the  operation  of  the  statute.  In  Bayliss  v.  Street, 
51  Iowa,  627,  a  letter  addressed  by  the  maker  of  the  note  in  suit,  stating  that  he 
"  hoped  to  pay,"  and  that  in  case  of  his  death  he  had  provided  for  payment  out 
of  his  life  insurance,  was  held  sufficient.  In  Tread  way  v.  Treadway,  5  111,  App. 
478,  a  debtor  was  asked  by  his  creditor  to  give  him  his  note  for  a  debt  barred 
by  the  statute,  to  which  he  replied  that  "  it  makes  no  difference,  it  is  all  in  the 
family;  "  and  it  was  held  not  sufficient  to  found  a  promise  upon.  Fries  v.  Bois- 
selet,  9  S.  &  R.  (Penn.)  128;  Bailey  v.  Bailey,  14  id.  195;  Allison  7>.  James,  9 
Watts  (Penn.)  380;  Gilkyson  v.  Larue,  6  W.  &  S.  (Penn.)  213;  Hazlebaker  v. 
Reeves,  9  Penn.  264;  Davis  v.  Steiner,  14  Penn.  St.  275;  Wa.son  v.  Stem,  76 
Penn.  St.  121;  Senseman  v.  Hershman,  82  id.  83;  Miller  v.  Baschore,  85  id.  356; 
Johns  v.  Lantz,  63  id.  324.  In  the  last  case,  it  was  said:  "  No  case,  however, 
has  ever  gone  the  length  of  saying  that  there  must  be  an  express  promise  to 
pay  in  terms."  In  Bloom  v.  Kern,  30  La.  Ann.  part  2,  1263,  letters  from  the 
debtor  to  the  creditor,  declaring  his  inability  to  pay,  and  asking  for  indulgence, 
were  held  sufficient  to  interrupt  the  statute,  both  as  to  the  principal  debtor  and 
his  surety.  But  see  Cook  v.  Cook,  10  Heisk.  (Tenn.)  664,  where  it  was  held 
that  in  order  to  suspend  the  statute  a  request  for  delay  must  stipulate  for  a 
particular  time.  In  Leigh  v.  Linthicum,  30  Tex.  100,  these  words  in  a  letter 
were  held  not  sufficient  to  remove  the  statute  bar.  because  not  showing  what 
part  of  the  note  was  left  unpaid,  after  deducting  the  credits:  "  You  said  some- 
thing about  a  note  you  have.  You  are  apprised  I  have  an  offset;  when  I  see 
you  we  will  adjust  the  matter,  and  whatever  is  due  on  the  note  I  will  pay." 
The  words,  "  I  feel  ashamed  of  it  standing  so  long,"  in  a  letter  referring  to  a 
debt,  were  held  not  sufficient  in  Wilcox  v.  Williams,  5  Nev.  206.  A  pledge  of 
stock  to  secure  a  debt  was  held  a  continuous  acknowledgment  of  the  indebted- 
ness that  prevents  the  statute  from  running,  in  Citizen's  Bank  v.  Johnson,  21 
La.  Ann.  128.  But  the  true  rule  undoubtedly  is,  that  while  the  statute  runs 
upon  the  debt,  the  lien  upon  the  stock  for  the  amount  of  the  debt  still  remains; 
and  after  the  debt  is  barred,  the  pledgee  can  look  only  to  the  stock  for  payment,  (b) 
See  Jones  on  Pledges,  §§  581,  5S2. 

(b)  If  realty  and  a  policy  of  insurance  to  the  policy  when  such  right  is  barred 

are  both  included  in  one  mortgage,  and  as  to  the  land.     Charter  v.  Watson,  79 

both    are    made    subject    to    the    same  L.  T.  440. 
terms,  the  right  to  redeem  is  barred  as 


184  STATUTES   OF    LIMITATION.  [CHAP.   VII. 

amount  of  the  debt  should  be  stated  or  even  referred  to.  It  is 
sufficient  if  the  acknowledgment  admits  something  to  be  due 
upon  a  specific  claim,  and  parol  evidence  is  admissible  to  prove 
the  amount ; '  and  the  same  is  also  true  as  to  the  nature  of  the 
indebtedness.2  But  it  must  be  shown  unmistakably  to  rdate  to 
the  particular  debt  or  demand  which  is  sought  to  be  revived  by 
it,  or  the  acknowledgment  must  be  attended  by  circumstances 
which  will  enable  a  jury  to  ascertain  definitely  what  debt  was 
intended;3  and  an  acknowledgment  of  an  indebtedness  upon  the 

1  Ilazlebaker  ~>.  Reeves,  12  Penn.  St.  264.;  Davis  v.  Steiner,  14  id.  275;  Moore 
v.  Hyman,  13  Ired.  (N.  C.)  L.  272;  Hart  v.  Boyd.  54  Miss  547.  Unless  the 
promise  or  acknowledgment  is  for  a  sum  certain,  it  must  be  for  that  which  can 
be  reduced  to  a  certainty.  McRae  v.  Leary,  1  Jones  (N.  C.)  L.  gi;  Shaw  v. 
Allen,  Busb.  (N.  C.)  L.  58;  Peterson  v.  Ellicott,  9  Md.  52;  Thompson  v.  French, 
10  Yerg.  (Tenn.)453;  Hale  v.  Hale,  4  Humph  (Tenn.)  183;  Hunter  v.  Kitlredge, 
41  Vt.  359.  In  2  Starkie  on  Evidence  (3d  ed.),  p.  666,  this  rule  is  deduced  from 
the  cases:  "  From  the  late  decisions  on  the  effect  of  an  acknowledgment  under 
the  provisions  of  the  slatute  21  Jac.  I.  c.  19,  where  all  the  former  cases  were 
brought  under  consideration,  the  result  seems  to  be  that,  to  repel  the  limiting 
power  of  the  statute,  it  must  either  amount  to  an  express  promise  or  to  so  clear 
an  admission  of  a  still  subsisting  liability,  that  a  promise  must  necessarily  be 
implied."  In  Colledge  v.  Horn,  3  Bing.  119,  the  letter  was  this:  "  I  have 
received  yours  respecting  the  plaintiff's  demand;  it  is  not  a  just  one:  I  am 
ready  to  settle  the  account  whenever  the  plaintiff  thinks  proper  to  meet  on  the 
business;  I  am  not  in  his  debt  £90,  nor  anything  like  that  sum;  shall  be  happy 
to  settle  the  difference  by  his  meeting  me."  It  was  held  that  the  last  clause 
admitted  something  due;  and  that  parol  evidence  may  be  given  to  determine 
the  amount.  See  also  Waller  ?'.  Lacy,  1  M.  &  G.  54.  Thus  an  absolute  admis- 
sion of  some  debt  being  due  is  sufficient,  and  that  admission  may  be  coupled 
with  evidence  to  prove  the  amount.  See  Lechmere  v.  Fletcher,  1  C.  &  M  623: 
Cheslyn  v.  Dalby,  4  Y.  &  C.  238;  Morrell  v.  Frith,  3  M.  &  VV.  402;  Spong  v. 
Wright,  9  id.  629. 

2  Dickenson  v.  Hatfield,  1  M.  &  R.  141. 

3  In  order  to  revive  a  note,  which  on  its  face  is  barred  by  the  statute  by  a  new 
promise,  such  new  promise  must  refer  to  or  describe  that  note  with  reasonable 
certainty.  Gartrell  v.  Linn,  79  Ga.  700;  Switzer  p.  Noffsinger,  82  Va.  518; 
Martin  v.  Broach,  6  Ga.  21;  Arey  7-.  Stephenson,  11  Ired.  (N.  C.)  L.  86;  Robbins 
v.  Farley,  2  Strobh.  (S.  C.)  34S;  Conway  v.  Reyburn,  22  Ark.  290;  Lockhart  v. 
Haves,  Dudley  (S.  C.)  321;  Buckingham  v.  Smith,  23  Conn.  453;  Clarke  v. 
Dutcher,  9  Cow.  (N.  Y.)  674;  Stafford  v.  Bryan,  3  Wend.  (N.  Y.)  532;  McMullen 
v.  Grannis,  10  N  Y.  Leg.  Obs.  57.  It  must  refer  distinctly  and  specifically  to  the 
original  debt.  Dul.son  v.  Quantrell,  1  Phila.  (Penn.)  204;  Clark  v.  Maguire,  35 
Penn.  St.  259  Tracy  v.  Newell,  3  Leg.  &  Ins.  Rep.  50;  Cook  v.  Martin,  20 
Conn,  63;  Lord  v.  Harvey,  3  id.  370.  The  necessity  for  a  new  promise,  or  of 
evidence  from  which  a  new  promise  may  be  implied,  for  the  purpose  of  avoid- 
ing a  plea  of  tin-  statute,  i-;  as  well  settled  in  England  as  in  this  country;  and 
although  an  express  or  implied  acknowledgment  of  the  debt  will  suffice.  Gard- 


§  68.]  ACKNOWLEDGMENTS.  185. 

aggregate  of  several  distinct  classes  of  claims,  but  which  neither 
refers  to  any  particular  claim,  nor  to  one  debt   only,  has   been 

ner  v.  M'Mahon,  3  Q.  B.  561  Walter  v.  Lacy,  I  M.  &  G.  54;  Dodson  z.  Mackey, 
8  Ad.  fit  El.  225,  yet  there  can  be  no  recovery  if  the  acknowledgment  is  so 
qualified  as  to  rebut  the  implication  of  a  promise  of  payment,  which  would 
otherwise  arise,  Routledge  v.  Ramsay,  id.  221;  Spong  v.  Wright,  9  M.  &  W.  629; 
Hart  v.  Prendergast,  14  id.  741;  Cripps  v.  Davis,  12  id.  159;  Morrell  v.  Frith, 
3  id.  402;  Bateman  v.  Pinder  3  Q.  B.  574;  Yea  v.  Fouraker,  2  Burr.  1099;  Tan- 
ner v.  Smart,  6  B.  &  C.  602.  The  courts  of  South  Carolina,  however,  distinguish 
between  those  cases  in  which  the  debt  is  barrei  before  the  admission,  and  those 
in  which  it  is  not,  and  hold  much  slighter  evidence  sufficient  in  the  latter  case 
than  in  the  former.  Young  v.  Monpoey,  2  Bailey  (S.  C.)  278;  Bowdre  v.  Hamp- 
ton, 6  Rich.  (S.  C.)  208,  Deloach  v.  Turner,  7  id.  143.  This  differs  from  the  gen- 
eral course  of  decision,  and  can  hardly  be  sustained  on  principle.  See  e.  g;. 
Case  v.  Cushman,  1  Penn.  St.  241.  The  acknowledgment  must  appear,  or  be 
shown  to  relate  to  the  debt,  which  is  the  cause  of  action,  Stafford  v.  Bryan,  3 
Wend.  (N.  Y.)535;  Martin  v.  Broach,  6  Ga.  21;  Lockhart  v.  Eaves,  Dudley 
(S.  C.)  321;  Airey  v.  Stevenson,  11  Ired.  (N.  C.)  86;  Brailsford  v.  James,  3 
Strobh.  (S.  C  )  171;  Boxley  v.  Gayle,  19  Ala.  151;  but  will  be  presumed  to  refer 
to  that  proved  by  the  creditor,  unless  another  is  shown  to  exist  by  his  evidence 
or  that  of  the  debtor,  Bailey  v.  Crane,  21  Pick.  (Mass.)  323;  Woodbridge  v. 
Allen,  12  Met.  (Mass.)  470;  Coles  v.  Kelsey,  2  Tex.  541;  Brown  v.  State  Bank, 
10  Ark.  134;  Wood  v.  Wylds,  n  id.  754;  Guy  v.  Tarns,  6  Gill  (Md.)  82;  because, 
if  (here  is  no  other  debt,  there  is  no  need  of  proof;  and  if  there  is,  the  burden 
rests  with  him  who  maintains  the  affirmative.  Some  cases  go  further  in 
language,  and  require  specific  proof  of  identity  in  all  cases,  either  from  the 
words  of  the  acknowledgment  or  from  other  sources.  Robinson  v.  Fraley,  2 
Strobh.  (S.  C.)  348;  Pray  v.  Garcelon,  17  Me.  145;  Martin  v.  Broach,  supra.  An 
unsettled  account,  containing  different  charges  or  items,  appears  not  to  be 
taken  out  of  the  statute  by  a  general  admission  not  naming  the  amount  due  on 
the  whole,  nor  referring  to  any  specific  portion,  HofI  v.  Richardson,  19  Penn. 
St.  388;  Clarke  v.  Dutcher,  9  Cow.  (N.  Y.)  674;  because  the  ambiguity  here 
appears  on  the  face  of  the  evidence;  and  such  is  unquestionably  the  law  when 
part  of  the  plaintiff's  demand  is  barred  by  the  statute,  and  part  not,  unless  the 
acknowledgment  is  so  worded  as  to  refer  manifestly  to  the  former  as  well  as  to 
the  latter.  Morgan  v.  Walton,  4  Penn.  St.  321.  A  vague  and  ambiguous 
acknowledgment  is  insufficient.  Harbold  v.  Kuntz,  16  Penn.  St.  210;  Suter  v. 
Sheeler,  22  id.  30a;  Farley  v.  Kustenbader,  3  id.  418.  So  when  the  ambiguity 
or  uncertainty  arises  from  the  nature  of  that  to  which  it  refers;  but  it  has  not 
yet  been  decided  that  a  single  and  liquidated  debt  will  not  be  revived  by  a  gen- 
eral acknowledgment  or  promise  of  payment.  Certainty  is  essentially  requisite 
to  a  good  cause  of  action;  but  an  acknowledgment  will  be  sufficient,  if  it  can  be 
reduced  to  certainty  by  applying  it  to  that  to  which  it  relates.  Smith  v.  Leeper, 
10  Ired.  (N.  C.)  86;  Moore  v.  Hyman,  13  id.  272.  When  the  debt  is  certain  and 
liquidated,  nothing  need  be  said  in  the  acknowledgment  as  to  its  amount, 
Thompson  v.  French,  10  Yerg.  (Tenn.)  453;  Hazlebaker  v.  Reeves,  2  Jones 
(N.  C.)  264;  Davis  v.  Steiner,  14  Penn.  St.  275;  Dinsmore  v.  Dinsmore,  21  Me. 
433;  Williams  v.  Griffith,  3  Exch.  335;  unless  there  is  something  in  the  acknowl- 


1 86  STATUTES    OF    LIMITATION.  [CHAP.   VII. 

held  not  sufficient  to  take  any  one  of  the  claims  out  of  the  stat- 

edgment  itself,  or  in  the  circumstances  under  which  it  is  made,  to  show  that  the 
debtor  meant  to  reserve  to  himself  the  right  to  adjust  or  settle  the  sum  to  be 
paid,  instead  of  leaving  it  to  be  determined  by  the  law.     A  promise  or  acknowl- 
edgment which  speaks  of   the  debt  as  unliquidaied,  Peebles  v.   Mason,  2  Dev. 
(N.  C.)  367;  Harbold  v.  Kuntz,  16  Penn.  St.  210;  or  merely  expresses  an  inten- 
tion to  pay  whatever  is  found  due  upon  further  examination,  as  when  the  debtor 
promises  to  have  a  settlement  of  the  account,  or  to  refer  it  to  arbitrators,  Sutton 
v.  Buriuss,  9  Leigh  (Va.)  3S1;   Bell  v.   Crawford,   8  Gratl.  (Va.)  no;  Moore  v. 
Hyman,  13  Ired.  (N.  C.)  272;   Morgan  v.  Walton,  4  Penn.  St.  321,  is  interpreted 
as  showing  a  willingness  to  come  to  terms  with  the  creditor,  and  not  deprive 
himself  of  the  protection  of  the  statute.     A  general  acknowledgment  that  some- 
thing is  due  on  an  unliquidated  account  for  goods  sold  or  services  rendered  at 
different  times  during  a  long-continued  period,  is  insufficient  to  remove  the  bar 
of  the  statute  as  to  the  whole  demand.     Suter  v.  Shuber,  23  Penn,  St.  308.     But 
the  question  is  one  purely  of  intenlion.    A  promise  to  settle  a  debt  may  be  given 
in  such  a  way  as  to  show  that  the  debtor  meant  to  bind  himself  to  pay  it;  and 
words  whollv  insufficient  when  applied  to  an  unsettled  account,  may  have  a  dif 
ferent  signification   as  to  a   debt   reduced  to  certainty.     Aylett  v.  Robinson,  9 
Leigh  (Va.)  45;  Brookes  v.  Chesley,  4  Gill  (Md.)  205;  Smallwood  v.  Smallwood, 
2  D.  &  B.  (N.  C.)  330;   Barnard  v.  Bartholomew,   21   Pick.  (Mass.)   323.     The 
admission  must  express  or  imply  a  willingness  to  assume  an  immediate  obliga- 
tion, even  if  it  defers  the  time  of  performance,  and  not  be  limited  to  a  mere 
expression  of  hope  or  anticipation.     Spong  v.  Wright,  9  M.  &  W.  629;   Hart  v. 
Prendergast,    14   id.    741;    Marseilles   v.    Kenton,    17    Penn.   St.   238.     Thus   a 
promise  or  attempt  to  make  an  arrangement  for  payment  of  a  debt  which  is  not 
carried  out  or  perfected  will  not  rebut  a  plea  of  the  statute,  because  it  shows 
that  the  defendant,  instead  of  being  willing  to  meet  the  debt  as  it  stands,  con- 
templates paying  it  in  some  other  way  not   yet  determined.     The  Kensington 
Bank  v.  Patton,  14  Penn.  St.  479;  Oakes  v.  Mitchell,  15  Me.  360.     Dicta,  if  not 
the  cases  themselves,  lead  to  the  conclusion  that  the  most  unequivocal  promise 
to   pay  an   unliquidated   debt   will   not   take   it  out  of  the   statute,   unless  the 
amount  actually  due,  or  which  the  debtor  is  willing  to  pay,  is  fixed  by  the  terms 
of  the  promise,  or  the  subsequent  language  or  conduct  of  the   parties,  instead 
of  being  left  to  a  jury  on  such  evidence  as  may  have  survived  the  lapse  of  time. 
But  any  acknowledgment  of  the  existence  of  an  outstanding  debt,  where  there 
are  no  circumstances  indicating  a  purpose  not  to  pay  it,  is  sufficient  to  raise  a 
new    promise  and   remove   the   statute   bar,  although   limited   in  terms  to  the 
amount  which  proves  to  be  due  upon  examination  or  settlement  of  the  accounts 
b  -tween  the  parties.     Blake  v.  Parleman,  13  Vt.  574;  Williams  v.  Finney,  16  id. 
297;    Macklin  v.   Macklin,   id.  193;   Cooper  v.  Parker,  25  id.  502.     Whether  the 
debt  is  revived  by  an  ambiguous  promise  or  acknowledgment,  depends  upon 
what  is  meant  by  the  person  vho  makes  it,  and  this  should  ordinarily  be  left  to 
the  jury,  under  proper  instructions  from  the  court,  Guy  v.  Tarns,  6  Gill  (Md.) 
-2;   Bird  v.  Gammon,  3   Bing.  N.  C.  883;   Dorr  v.  Swartwoul,  1   Blatchf.  (U.  S.) 
17,,   Wainman  v.  Kynman,  1  Exch.  118;  however  clear  or  certain  the  evidence 
may  be,  White  v.  Jordan,  27  Me.  370;  unless  there  is  a  plain  want  of  evidence, 
when  a  verdict  should  be  directed  for  the  defendant,  whether  the  evidence  be  in 
writing,  Marseilles  v.   Kenton,  17   Penn.   St.  239;   Morrell  v.   Frith,  3  M.  &  W. 


§  68.  J  ACKNOWLEDGMENTS.  187 

ute.1     Thus,  in  the  Connecticut  case,  where  the  plaintiff  held  two 

402;  or  merely  verbal,  Hancock,  v.  Bliss,  7  Wend.  (N.  Y.)  206;  Sutton  v.  Burruss, 
o,  Leigh  (Va.)  381;  Bell  v.  Crawford,  sutra;  Berghaus  v.  Calhoun,  6  Watts 
(Penn.)  219;  Farley  v.  Kuslenbader,  3  Penn.  St.  418;  Waples  v.  Layiou,  3  Harr. 
(Del.)  50S;  Ventris  v.  Shaw,  14  N.  H.  422;  Bell  v.  Morrison,  1  Pet.  (U.  S.)  351. 
On  the  other  hand,  the  jury  should  find  for  the  plaintiff,  on  clear  proof  of  a 
subsequent  part  payment  or  other  unequivocal  acknowledgment  of  the  debt, 
and  of  the  court  to  granl  a  new  trial  if  they  do  not,  although  the  point  is  one  on 
which  juries  usually  require  here  restraint  rather  than  prompting.  Jones  v. 
Jones,  21  N.  H.  219;  Rucker  v.  Frazier,  4  Strobh.  (S.  C.)  93.  In  Landes  v. 
Roth,  109  Penn.  St.  621,  it  was  held  that  a  general  admission  that  the  debtor 
owes  for  a  certain  kind  of  property,  or  for  services,  etc  ,  was  held  sufficient 
although  the  amount  of  the  indebtedness  is  not  stated.  Schmidt  v.  Pfau,  114 
111.  494;  Johnson  v.  Johnson,  80  Ga.  260;  Gartrell  v.  Linn,  79  Ga.  700;  Shipley 
v.  Shilling,  66  Md.  558;  Fletcher  v.  Gillan,  62  Miss.  8;  Hussey  v.  Kirkman,  95 
N.  C.  63;  Chapman's  App.,  122  Penn.  St.  331;  Montgomery  v.  Cunningham, 
104  Penn.  St.  349;  Lawson  v.  McCartney,  id.  356;  Croman  v.  Stull,  119  id.  91. 
The  acknowledgment  must  be  made  to  the  creditor  or  his  agent  and  there  is  no 
theory  upon  which  the  doctrine  of  acknowledgments  is  predicated  which  will 
sustain  those  cases  which  hold  that  an  acknowledgment  to  a  stranger  is  suffi- 
cient, {a)  Biddel  v.  Brizzolara,  64  Cal.  354;  Dinguid  v.  Shoolrield,  32  Gratt.  (Va.) 
803;  Maxwell  v.  Reilly,  11  Lea  (Tenn.)  307;  Henry  v.  Root,  33  N.  Y.  526;  In  re 
Kendrick,  107  N.  Y.  104;  Libby  v.  Robinson,  79  Me.  168;  Hargis  7>.  Sewell,  87 
Ky.  63;  Kuner  v.  Crull,  19  111.  89;  Niblack  v.  Goodman,  67  Ind.  174;  Comer  v. 
Allen,  72  Ga.  1;  Fort  Scott  v.  Hickman,  1x2  U.  S.  150;  Pearson  v.  Darrington, 
32  Ala.  227.  Unless  the  acknowledgment  is  so  made  to  a  stranger  that  the 
debtor  has  constituted  such  stranger  his  agent  to  communicate  the  acknowledg- 
ment to  the  creditor,  in  which  case  it  is  treated  as  having  been  made  by  the 
debtor  himself.  Wintertown  v.  Winterton,  7  Hun  (N.  Y.)  230;  De  Freest  v. 
Warner,  98  N.  Y.  217;  Bachman  v.  Roller,  9  Baxt.  (Tenn.)  409.  It  is  also  an 
indispensable  requisite  that  such  acknowledgment  should  have  been  communi- 
cated to  the  creditor  within  a  reasonable  time  after  it  was  made  to  such  third 
person.  Abercrombie  v.  Butts,  72  Ga.  74;  Allen  v.  Collins,  73  Mo.  178;  Allen 
v.  Collier,  70  id.  138. 

1  Buckingham  v.  Smith,  23  Conn.  453,  where  several  claims  against  a  person 
are  barred,  a  general  acknowledgment  of  indebtedness  will  not  take  any  of 
them  out  of  the  statute.  Ibid.;  Smilh  v.  Moulton,  12  Minn.  352;  Walker  v. 
Griggs,  32  Ga.  119;  Boxley  v.  Gayle,  19  Ala.  151.  In  Buckingham  v.  Smith, 
the  court  submitted  to  the  jury  whether  the  acknowledgment  related  to  the  note 
in  question;  and  upon  hearing  in  the  appellate  court,  it  vas  held  that  this  was 
all  the  plaintiff  could  ask;  and  that  the  acknowledgment  only  applies  to  the 
balance  of  all  the  claims  upon  settlement,  and  that  the  case  did  not  come  within 
the  rule  adopted  in  Lloyd  v.  Maund,  2  T.  R.  761;  Frost  v.  Bengough,  1  Bing. 
266;  or  Beale  v.  Nind,  4  B.  &  Aid.  571.  See  Clark  v.  Maguire,  35  Penn.  St.  259; 
Cook  v.  Martin,  29  Conn.  63;  Conway  v.  Reyburn,  22  Ark.  290;  Arey  v. 
Stephenson,    11   Ired.   (N.   C.)   L.  86;  Clarke  v.    Dutcher,  9  Cow.  (N.   Y.)  674; 

(a)  See  also  Tuggle  v.  Minor,  76  Cal.  96;  Bullion  &  Exchange  Bank  v.  Hegler, 
93  Fed.  Rep,  890. 


188  STATUTES   OF    LIMITATION.  [CHAP.   VII. 

independent  claims  against  the  defendant,1  one  a  note,  and  the 
other  an  account,  a  statement  of  which  was  written  down  on  one 
piece  of  paper  and  presented  to  the  defendant  soon  after  they 
became  due,  and  were  admitted  by  him,  as  so  presented,  and  five 
years  afterward  the  defendant  made  a  general  acknowledgment 
of  indebtedness,  and  promised  to  pay  him  what  he  owed  him,  in 
an  action  of  assumpsit  upon  the  note  and  account  the  defendant 
having  pleaded  the  statute  in  bar,  it  was  held  that  the  evidence 
of  the  acknowledgment  should  not  be  rejected,  because  it  was 
too  general  and  indefinite,  but  that  the  question  of  its  application 
was  for  the  jury.3  In  that  case  no  difficulty  could  arise  as  to  the 
application  of  the  acknowledgment  or  the  intention  of  the  parties, 
as  the  defendant's  attention  was  directed  to  both  claims.  Hence 
where  there  is  an  acknowledgment  of  an  indebtedness,  and  there 
are  several  distinct  debts,  whether  the  amount  thereof  is  certain 
or  not,  the  question  as  to  whether  the  acknowledgment  related 
to  all  or  to  one  or  more  of  them,  and  to  which,  is  for  the  jury; 
and  if  the  acknowledgment  is  sufficiently  definite  to  enable  them 
to  refer  it  to  the  specific  indebtedness  intended,  their  finding  will 
be  sustained.4  But  in  these  cases,  as  well  as  in  the  others  before 
cited  to  this  point,  there  could  be  no  doubt  as  to  the  indebted- 
Martin  v.  Broach,  6  Ga.  21;  Sands  v.  Gelston,  15  Johns.  (N.  Y.)  511;  Sherrod  1. 
Bennett,  8  Ired.  (N.  C.)  L.  309;   Bralsford  v.  James,  3  Strobh.  (S.  C.)  171. 

1  Cook  v.  Martin,  29  Conn.  60. 

s  See  Whitney  v.  Bigelow,  4  Pick.  (Mass.)  no.  In  Martin  v.  Broach,  6  Ga.  21, 
it  was  held  that  where  there  is  no  dispute  as  to  the  facts  tending  to  prove  the 
acknowledgment  or  new  promise,  the  question  is  one  of  law  for  ihe  court;  but 
where  there  is  any  dispute,  it  is  a  mixed  question  of  law  and  fact  for  the  jury. 
In  Lloyd  v.  Maund,  2  T.  R.  761,  the  court  apparently  regarded  the  question  as 
to  whether  an  ambiguous  letter,  neither  expressly  admitting  or  denying  the 
debt,  amounled  to  an  acknowledgment,  as  one  of  fact  for  the  jury. 

Buller  and  Grose,  JJ.,  concurred.  Whether  the  acknowledgment  relates  to 
the  debt  in  suit  is  a  question  for  the  jury.  Beal  7/.  Nind,  4  B.  &  Aid.  571.  See 
Frost  7'.  Bengough,  1  Bing  266;  Lee  v.  Wyse,  35  Conn.  384;  Boyd  v.  Hurlburt, 
41  Mo.  264;  Shaw  v.  Newell,  2  R.  I.  264. 

3  Whitney  v.  Bigelow,  supra;  Cook  v.  Martin,  supra;  Frost  v.  Bengough,  supra. 

*  Cook  t.  Martin,  supra;  Frost  v.  Bengough,  supra;  Whitney  v.  Bigelow, 
tupra.  The  amount  or  nature  of  the  debt  need  not  be  stated.  If  the  particular 
indebtedness  is  sufficiently  identified,  these  circumstances  may  be  supplied  by 
extrinsic  evidence.  Lechmere  v.  Fletcher,  1  C.  &  M.  623;  Lord  v.  Harvey,  3 
Conn.  370.  In  Lawrence  v.  Worrell,  Peake's  Cas.  93,  an  acknowledgment  that 
s-.tiir  money  is  due  was  held  sufficient  to  take  the  case  out  of  the  statule  as  to 
.ill  that  is  due  See  also  Peters  v.  Brown,  4  Esp.  46;  Lloyd  v.  Maund,  2  T.  R. 
700;  Catling  v.  Skoulding,  6  id.  193. 


8  68.]  ACKNOWLEDGMENTS.  189 

ness  intended.  In  one  case  '  it  was  shown  that  the  only  claim 
the  plaintiff  had  against  the  defendant  was  the  note  in  suit.  In 
another  the  only  indebtedness  was  for  a  balance  upon  the  note 
and  account  in  suit,  a  statement  of  which  upon  one  piece  of  paper 
was  presented  to  the  defendant,  and  was  before  him  when  the 
acknowledgment  was  made,  and  his  acknowledgment  related  to 
that.2  In  another,3  where  the  defendant  wrote  a  letter  to  his 
creditor,  referring  to  certain  "  old  notes,"  saying,  "  I  have  no 
money  now,  but  you  shall  have  every  cent  that  is  due  on  them," 
this  was  held  insufficient  to  remove  the  bar  of  the  statute,  as  it 
did  not  specify  the  particular  notes  referred  to  in  the  letter.  The 
general  rule  is  that,  where  there  is  an  acknowledgment  of  indebt- 
edness, it  will  be  taken  to  relate  to  the  demand  in  suit,  and  the 
burden  is  upon  the  defendant  to  show  that  it  related  to  another 
debt,  or  to  a  balance  upon  the  debt  in  suit  and  another  debt.4 
But  if,  upon  its  face  or  upon  the  proof,  it  is  clearly  established 
that  the  acknowledgment  did  not  relate  to  the  debt  in  suit,  the 
court  should  direct  a  nonsuit,  where  a  nonsuit  can  be  directed  by 
the  court,  or  should  direct  a  verdict  for  the  defendant,  where  a 
nonsuit  cannot  be  directed  without  the  leave  of  the  parties.3 

Where  an  acknowledgment  stands  alone,  in  nowise  dependent 
upon  extrinsic  circumstances,  its  effect  and  construction  is  for  the 
court;  but  if  it  is  explained,  or  in  anywise  controlled  by  extrinsic 
facts,  the  question   is  for  the  jury.      Thus,  where  the  defendant 

1  Frost  v.  Bengough,  supra.     See  also  in  Whitney  v.  Bigelovv,  supra. 

'Cook  v.  Martin,  supra 

3  Stout  v.  Marshall,  75  Iowa,  498. 

*  Whitney  v.  Bigelow,  supra;  Cook  v.  Martin,  supra. 

5  Thus,  where  in  assumpsit  on  a  bill  of  exchange,  to  which  the  statute  was 
pleaded,  two  letters  were  given  in  evidence  to  lake  the  case  out  of  the  statute, 
written  bv  the  defendant  to  a  third  person;  the  first  of  them  stating  that  he 
should  be  much  obliged  to  the  plaintiff  to  withdraw  his  outlawry,  adding  that, 
as  soon  as  his  situation  would  allow,  the  plaintiffs  claim,  with  others,  should 
receive  that  attention  which,  as  an  honorable  man,  he  considered  them  to 
deserve;  and  the  second  letter  expressing  his  readiness  to  do  anything  to  satisfy 
the  plaintiff  and  all  his  creditors,  no  evidence  being  given  of  anv  proceeding  to 
outlawry  having  been  taken  with  respect  to  the  debt  the  plaintiff  sought  to 
recover,  it  was  held  that,  under  these  circumstances,  the  letters  were  not  suffi- 
ciently connected  with  that  debt  to  entitle  the  plaintiff  to  a  verdict,  and  he  was 
nonsuited;  but  leave  was  given  for  a  motion  to  set  aside  the  nonr.uit.  On  appli- 
cation afterwards  to  the  Court  of  Common  Pleas  the  nonsuit  was  confirmed,  a 
rule  nisi  for  setting  it  aside  being  refused.  Fearn  v.  Lewis,  4  C.  &  P.  169.  See 
Frost  v.  Bengough,  supra;  Bird  v.  Gammon,  3  Bing.  N.  C.  8S3. 


I90  STATUTES   OF    LIMITATION.  [CHAP.   VII. 

sent  the  plaintiff  a  letter,  as  follows:  "  Sir,  — Since  the  receipt 
of  your  letter  ^and  indeed  for  some  time  previously),  I  have  been 
in  almost  daily  expectation  of  being  enabled  to  give  a  satisfactory 
reply  to  your  application  respecting  the  demand  of  Messrs.  Mor- 
rell  against  me.  I  propose  being  in  Oxford  to-morrow  morning, 
when  I  will  call  upon  you  on  the  matter,"  etc.,  the  court  refused 
to  leave  the  question  of  sufficient  acknowledgment  in  writing  to 
the  jury,  and  held  as  a  matter  of  law  that  the  letter  was  not  a 
sufficient  acknowledgment,  and  upon  hearing  in  Exchequer  this 
ruling  was  sustained.1 

If  there  is  an  express  promise  to  pay,  all  implied  promises  are 
excluded  ;  and  the  party  relying  thereon  must  stand  upon  that 
exclusively,  and  cannot  seek  the  aid  of  any  implied  promise  to 
wrest  his  claim  from  the  operation  of  the  statute.2 

SEC.  69.  Express  or  Implied  Refusal  to  pay.  —  If  an  admission 
of  a  debt  is  accompanied  with  a  distinct  refusal  to  pay,  the  impli- 
cation of  a  promise  arising  from  the  acknowledgment  is  of  course 
rebutted.3  Thus,  even  under  the  old  theory  (and  a  fortiori  the 
case  would  be  so  still  more  now)  an  admission  as  follows,  "  I  can- 
not afford  to  pay  my  new  debts,  much  less  my  old  ones,"  was 
held  insufficient.4  So,  too,  if  an  acknowledgment  is  accompanied 
with  an  objection  to  payment,  which  would,  if  valid,  have  been 
at  any  time  a  good  defense  to  an  action,  no  presumption  of  a 
promise  of  payment  will  be  raised.  Thus,  an  admission  of  a  debt 
made  to  a  person,  who  at  the  same  time  signed  a  paper  import- 
ing to  release  it.  was  held  not  sufficient  to  avoid  the  statute, 
although  the  discharge  was  inoperative,  and  was  indeed  con- 
ditional upon  an  act  of  the  defendant  which  he  failed  to  perform.5 
So,  too,  where  the  defendant  said,  "  I  acknowledge  the  receipt 

1  Morrell  v.  Frith.  3  M.  &  W.  402;  Clark  v.  Sigourney,  17  Conn.  511;  Curzon 
monds,  6  M.  &  \V.  295.  Hancock  :■.  Bliss.  7  Wend.  (N.  V.)  267,  holds 
that,  where  the  expressions  are  vague  and  indeterminate,  leading  to  no  definite 
conclusiDn.  and  at  most  only  to  probable  inferences,  which  may  affect  different 
minds  in  different  ways,  as  where  the  defendant  said  "  that  it  was  not  in  his 
power  to  pay  at  that  time,  but  he  hoped  to  see  the  plaintiff  and  do  something 
about  it,"  the  evidence  ought  not  to  be  left  to  the  jury.  See  also  Magee  :•. 
M  ■;,  10  Watts  (Penn.)  172;  Berghaus  v.  Calhoun,  6  id.  219;  Clarke  :•.  Dutcher, 
9C0A      \\  V.)  6-4;   Oliver  v.  Gray,  1  H.  &  G.  (Md.)  204. 

*Se  Wildman,  iS  Conn.  124;   Tanner  v.  Smart.  6  B.  &  C.  603. 

3  Lee  v.  Wilmot.  L.  R.  1  Ex.  364;   Brigstocke  v.  Smith,  1  C.  M.  &  R.  483. 

*  Knott  v.  Farren,  4  I).  &  R. 

'Goate  v.  Goate,  1  H.  X  N.  29. 


§  69.]  ACKNOWLEDGMENTS.  I9I 

of  the  money,  but  the  testatrix  gave  it  to  me,"  it  was  held  that 
the  last  expression  nullified  the  acknowledgment  of  the  existence 
of  the  debt.1     So  where  the  debtor  said:   "  I   know  that   I   owe 

1  Owen  v.  Wooley,  Buller's  N.  P.  168;  De  La  Torre  v.  Barclay,  r  Starkie,  7. 
An  admission  that  the  sum  claimed  has  not  been  paid  is  not  sufficient,  without 
some  furihet  admission,  or  other  proof  that  the  debt  once  existed.  There  must 
be  evidence  of  a  promise,  express  or  implied,  to  pay  the  debt,  Allcock  v.  Ewen. 
2  Hill  (S.  C.)  326,  Laurence  v.  Hopkins,  13  Johns.  (N.  Y.)  28S;  Sands  v.  Gelston, 
15  id.  511;  Moore  v.  Bank  of  Columbia,  6  Pet.  (U.  S.)  86;  Mosher  v.  Hubbard, 
13  Johns.  510;  Guier  v.  Pearce,  2  Browne  (Penn.)  35;  Young  v.  Monpoey,  2 
Bailey  (S.  C.)  278;  Cohen  r.  Aubin,  id.  283;  Lowry  v.  Dubose,  id.  425;  Tram, 
mell  v.  Salmon,  id.  308;  and  an  admission  that  the  debt  continues  due  at  the 
time  of  the  acknowledgment.  Bangs  v.  Hall,  2  Pick.  (Mass.)  36S;  French  v. 
Frazier,  7  J.  J.  Mar.  (Ky.)  425;  Wetzell  v.  Bussard,  11  Wheat.  (U.  S.)  310;  Oliver 
v.  Gray,  1  H.  &  G.  (Md.)  204;  Ferguson  v.  Taylor,  1  Hayw.  20;  Belles  v. 
Belles,  7  Halst.  339;  Purdv  v.  Austin,  3  Wend.  187;  Russel  v.  Gass,  Mart.  &  Y. 
(Tenn.)  270;  Barlow  y.  Bellamy,  7  Vt.  54;  Mellick  v.  De  Seelhorst,  1  111.  171. 
There  must  be  such  an  acknowledgment  as  will  satisfy  a  reasonable  man  that 
the  defendant,  at  the  time  of  making  it,  considered  the  debt  then  existing. 
Harwell  v.  M'Callock,  2  Overt.  (Tenn.)  275.  The  promise  must  be  absolute 
and  unqualified,  and  is  not  to  be  extended  by  implication  or  presumption 
beyond  the  express  words  of  the  promise,  Kimmel  v.  Schwartz,  1  111.  216; 
Smallwoad  v.  Smallwood,  2  D.  &  B.  (N.  C.)  330;  Mastin  v.  Waugh,  id.  517: 
Oliver  v.  Gray,  1  H.  &  G.  (Md.)  204;  Eckert  v.  Wilson,  12  S.  &  R.  (Penn.) 
393;  and  must  clearly  refer  to  the  verv  d;bt  in  dispute  between  the  parties. 
Clarke  v.  Dutcher,  9  Cow.  (N.  Y.)  674.  A  general  acknowledgment  of  indebted- 
ness to  the  plaintiff  is  sufficient, prima  facie,  to  take  a  demand  out  of  the  statute; 
the  onus  lies  on  the  defendant  to  prove  that  he  referred  to  a  different  demand. 
Whitney  v.  Bigelow,  4  Pick.  (Mass.)  no.  It  must  be  distinct,  and  without  a 
question  of  its  being  due,  or  an  intimation  thai  it  would  not  be  paid.  Berghaus 
v.  Calhoun,  6  Watts  (Penn.)  219;  Gleim  -'.  Rise,  id.  44.  There  must  be  an 
express  promise  to  pay,  or  an  acknowledgment  of  a  present  indebtedness  and 
willingness  to  pay.  Allen  &.  Webster,  15  Wend.  (N.  Y.)  284;  Stafford  v.  Rich- 
ardson, id.  302;  Gaylord  v.  Van  Loan,  id.  309.  The  new  promise  must  be  clear 
and  express.  Harrison  v.  Handley.  1  Bibb  (Ky.)  443;  Ash  v.  Patton,  3  S.  &  R. 
(Penn.)  300;  Head  v.  Manners,  5  J.  J.  Mar.  (Ky.)  255;  Bell  v.  Morrison,  1  Pet. 
(\J.  S  )  351.  The  mere  claiming  of  a  balance  is  not  sufficient.  Eckert  v.  Wilson, 
12  S.  &  R.  (Penn.)  393.  A  conditional  promise  is  sufficient,  but  the  plaintiff  must 
show  either  a  performane  of  the  condition  or  a  readiness  to  perform.  Oliver  v. 
Gray,  1  H.  &  G.  (Md.)  204;  Read  v.  Wilkinson,  2  Wash.  (U.  S.)  514;  Bill  :. 
Morrison,  1  Pet.  (U.  S.)  351.  If  the  defendant  promises  to  pay  a  debt  barred  by 
the  statute,  in  certain  specific  articles,  the  promise  is  conditional,  and  the  plain- 
tiff is  bound  to  show  a  willingness  to  accept  such  articles.  Bush  v.  Barnard, 
8  Johns.  (N.  Y.)  407.  Where  the  maker  of  a  note  denied  his  signature,  declaring 
the  note  to  be  a  forgery,  but  said  that,  if  it  could  be  proved  thai  he  signed  the 
note,  he  would  pay  it,  and  it  was  proved  at  the  trial  that  he  did  sign  it,  this  was 
held  sufficient  to  take  the  case  out  of  the  slatute:  Seaward  v.  Lord,  1 
Me.  163. 


ICj2  STATUTES   OF   LIMITATION.  [CHAP.   VII. 

the  money,  but  I  will  never  pay  it ;"  '  or,  "I  owe  the  debt,  but 
I  will  not  pay  it  unless  I  am  compelled  to  by  law;"  2  or,  "I  owe 
the  debt  but  am  too  poor  and  cannot  pay  it;"  3  or,  "I  owe  the 
debt,  but  am  under  no  obligation  to  pay  it;"  4  and,  generally,  if 
there  is  anything  attending  what  was  said,  which  repels  the  infer- 
ence of  a  promise  to  pay  the  debt,  it  does  not  save  it  from  the 
operation  of  the  statute.6 

1  A'Courc  v.  Smart,  3  Bing.  392.  Any  suggestion  accompanying  an  acknowl- 
edgment which  qualifies  it,  or  repels  the  idea  of  a  promise  to  pay,  destroys  its 
eiiect.  Cocks  v.  Weeks,  7  Hill  (N.  Y.)  45.  In  Danforth  v.  Culver, .11  Johns. 
<N".  Y.)  146,  the  defendant  admitted  the  indebtedness,  but  declared  his  intention 
to  rely  upon  the  statute;  and  it  was  held  that  the  acknowledgment  did  not 
remove  the  statutory  bar. 

2  Jenkins  v.  Boyle,  2  Cranch  (U.  S.  C.  C.)  120.  In  Warren  v.  Perry,  5  Bush 
(Ky  )  447,  the  question  as  to  whether  an  intimation  by  a  debtor  that  he  would 
pay  in  cattle  or  horses,  and  his  silence  under  (he  threat  of  a  suit  unless  he  would 
pay  in  United  States  currency,  implied  that  he  would  not  pay  money  in  any 
form,  and  if  sued  would  plead  the  statute,  was  held  to  be  one  for  the  jury.  In 
Cowley  v.  Furneil,  15  Jur.  908,  the  defendant  wrote  to  the  plaintiff  as  follows: 
"  I  am  much  surprised  at  receiving  a  letter  from  H.  B.  [an  attorney]  for  the 
recovery  of  your  debt.  I  must  candidly  tell  you,  once  for  all,  I  never  shall  be 
able  to  pay  you  in  cash,  but  you  may  have  any  of  the  goods  we  have  at  ihe 
Pantechnicon,  by  paying  the  expenses  incurred  thereon,  without  which  they 
cannot  be  taken  out,  as  before  agreed,  when  F.  was  in  town;  "  and  it  was  held 
not  sufficient  to  remove  the  statute  bar. 

3  Thayer  v.  Mills,  14  Me.  300. 

4  Lawrence  v.  Hopkins,  13  Johns.  (N.  Y.)  238;  Gaylord  v.  Van  Loan,  15  Wend. 
(N.  Y.)  308.  In  Woodfin  v.  Anderson,  2  Tenn.  Ch.  331,  a  writing  as  follows 
was  held  not  sufficient  to  prevent  the  runiing  of  the  statute:  "  I  request  that 
no  suit  shall  be  brought  on  this  note,  and  agree  that  the  statute  shall  not  run 
against  it.     I  will  pay  it  soon." 

5  Roosevelt  v.  Marks,  6  John.  (N.  Y.)  266;  Clementson  v.  Williams,  8  Cranch 
<U.  S.)  72;  Bell  v.  Rowland,  Hard.  (Ky.)  301:  Wetzell  v.  Bussard,  n  Wheat. 
(U.  S.)  314;  Thompson  v.  Peter,  12  id.  565;  Ormsby  v.  Lelcher.  3  Bibb(Ky.) 
271;  Harrison  v.  Hardy,  1  id.  443;  Bell  v.  Morrison,  1  Pet.  (U.  S.)  351.  A  clear 
distinct,  and  unqualified  acknowledgment  of  a  debt  as  an  existing  obligation, 
identifying  it  so  that  there  can  be  no  mistake  as  to  what  it  refers  to,  is  suffi- 
cient. Johns  v.  Lantz,  63  Penn.  St.  324:  but  it  must  be  such  that  the  debtor 
can  be  said  to  have  recognized  a  present  subsisting  liability,  and  manifested  a 
willingness  to  assume  or  renew  the  obligation.  Simonton  v.  Clark,  65  N.  C. 
525;  Chambers  v.  Ruby,  47  Mo.  99:  Ringo  v.  Brooks,  26  Ark.  540.  See  Buffing- 
ton  v.  Davis,  33  Md.  511,  where  a  statement  by  a  debtor  that  she  regretted  her 
inability  to  remit  the  amount  of  a  note,  and  referring  the  holder  to  her  agent 
wh  -  would  do  all  that  the  ruined  condition  of  her  affairs  would  permit,  was 
held  sufficient.  Where  a  debtor,  upon  being  called  upon  to  pay  a  debt,  said. 
"  If  you  will  call  in  two  weeks  I  will  pay  you  something,  I  cannot  tell  how 
much,"  it   was   held   to  amount   to  an    unqualified  admission  of  his  liability  to 


§  6g.]  ACKNOWLEDGMENTS.  I93 

An  acknowledgment  of  a  debt,  and  that  it  remains  unpaid, 
though  there  is  no  expression  of  willingness  to  remain  bound, 
will  avoid  the  bar  of  the  statute,  unless  accompanied  with  con- 
ditions or  circumstances  which  rebut  or  repel  an  intention  to 
pay ; '  but  a  mere  naked  acknowledgment  of  a  debt,  when  coupled 
with  conditions  or  when  coupled  with  anything  which  clearly 
indicates  an  intention  not  to  pay  it,  does  not  operate  to  remove 
the  statutory  bar.3 

pay  the  whole  debt,  and  such  an  acknowledgment  as  removed  the  statute  bar. 
Blakeman  v.  Fonda,  41  Conn.  581.  So  where  a  father  for  whom  his  daughter 
had  worked  admitted  before  his  decease  and  within  six  years  of  the  time  the 
action  was  brought  that  he  had  made  an  express  agreement  to  pay  her  a  certain 
amount,  it  was  held  sufficient  to  keep  the  claim  on  foot.  Watson  v.  Stem,  76 
Penn.  St.  121.  In  Missouri,  where  the  statutory  provision  relative  to  acknowl- 
edgments and  promises  to  take  the  debt  out  of  the  statute  is  that"  no  acknowl- 
edgment, or  promise  hereafter  made,  shall  be  evidence  of  a  new  or  continuing 
contract  whereby  to  take  any  case  out  of  the  operations  of  the  provisions  of 
this  article  or  deprive  any  party  of  the  benefit  thereof,  unless  such  acknowledg- 
ment or  promise  be  made  or  contained  by  or  in  some  writing  subscribed  by  the 
party  chargeable  hereby."  It  is  held  that  it  is  not  necessary  in  order  to  take  a 
claim  out  of  the  statute  that  the  debtor  should  acknowledge  a  willingness  to 
pay  the  debt,  but  that  a  simple  acknowledgment  that  he  owes  it,  and  that  it 
remains  unpaid,  is  sufficient  if  the  acknowledgment  is  not  coupled  with  con- 
ditions or  circumstances  which  repel  or  rebut  an  intention  to  pay  it.  Chidsey  v. 
Powell,  91  Mo.  622.  In  this  case,  where  the  debtor  by  letter  when  speaking  of 
the  note  in  suit  says,  "  The  debt  I  owe  you,"  it  is  an  unequivocal  admission 
and  acknowledgment  of  an  actual  subsisting  debt,  and  when  he  then  expresses 
his  inability  to  pay  any  part  of  the  debt  at  that  time,  giving  his  reasons  there- 
for, it  was  held  that  there  was  nothing  in  these  expressions  indicating  a  pur- 
pose not  to  pay  or  that  is  inconsistent  with  the  implied  promise  to  pay  arising 
from  the  acknowledgment. 

1  Elliott  v,  Leake,  5  Mo.  209;  Boyd  v.  Hurlbut,  41  Mo.  264.  See  Boyd  v. 
Hurlbut,  and  Mastin  v.  Branham,  supra;  Chambers  v.  Rubey,  47  Mo.  99;  War- 
lick  v.  Peterson,  58  Mo.  408. 

8  Where  the  defendant  in  answer  to  the  demand  for  the  payment  of  an  alleged 
indebtedness  about  to  be  barred  by  the  statute  of  limitations,  said  that  if  she 
had  certain  papers  she  could  offset  certain  accounts,  and  wanted  time  to  get 
them,  and  being  asked  if  she  would  extend  the  account  for  the  period  she 
desired,  she  signed  this  writing  in  the  book  containing  the  charge:  "  I  extend 
this  book  account  four  months  from  April  30.  1886."  The  court  held  that  this 
writing  was  equivalent  to  the  acknowledgment  that  the  debt  was  valid,  and 
would  become  due  in  four  months,  and  therefore  that  it  was  not  barred  by  the 
statute.  Crane  v.  Abel,  67  Mich.  242.  In  Texas  it  is  held  that  when  a  debt  is 
barred,  the  new  promise  relied  on  must  acknowledge  the  justness  of  the  claim, 
and  express  a  willingness  to  pay  it,  and  that  an  acknowledgment  which  will 
take  a  debt  out  of  the  Dar  of  the  statute  of  limitations  must  be  clear  and 
unequivocal,  and  neither  qualified  by  conditions  nor  limitations.  Krueger  v. 
Krueger,  76  Texas,  178.  See  Coles  v.  Kelsey,  2  Tex.  541;  McDonald  v.  Gray. 
[stats,  of  lim.  —  13] 


194  STATUTES   OF    LIMITATION.  [CHAP.   VII. 

"SEC.  70.  Essential  Requisities  of  an  Acknowledment.  —  An  ac- 
knowledgment of  the  original  justice  of  the  claim  is  not  suffi- 
cient; it  must  go  to  the  fact  that  it  is  due  and  unpaid,"'  and  must 
not  be  attended  with  any  acts  or  expressions  that  evince  an  inten- 
tion not  to  pay  it.1  It  must  be  consistent  with  a  promise  to  pay,3 
unqual  fied,4    clear,   plain,  unambiguous,5  and    so    distinct   in   its 

29  Tex.  83;  Dickinson  v.  Lou,  id.  173;  Madox  v.  Humphries,  24  Tex.  196; 
Smith  v.  Fly,  id.  353;   Leigh  v.  Linthicum,  30  id.  103. 

1  Clementson  v.  Williams,  8  Cranch  (U.  S.)  72;  Wetzell  v.  Bussard,  11  Wheat. 
(U.  S.)  314;  Thompson  v.  Peter,  12  id.  567;  Boyd  v.  Grant,  13  S.  &  R.  (Penn.) 
124;  Baxter  v.  Penniman,  8  Mass.  133;  Jones  v.  Moore,  5  Binn.  (Penn.)  576. 
A  mere  admission  that  a  debt  is  due,  and  not  paid,  is  not  sufficient  to  remove 
the  statute  bar,  when  the  admission  is  attended  by  expressions  which  repel  the 
idea  of  an  intention  or  desire  to  pay  it.  Gray  v.  McDowell,  6  Bush  (Ky.)  475. 
A  promise  to  pay  all  the  notes  that  can  be  produced  against  him,  but  at  the 
same  time  asserting  that  none  can  be  produced,  does  not  remove  the  statute 
bar.  Norton  v.  Colby,  52  111.  19S.  The  expression  in  a  letter,  "  I  feel  ashamed 
of  it  standing  so  long,'*  is  not  sufficient  to  take  the  debt  out  of  the  statute. 
Wilcox  v.  Williams,  5  Nev.  206.  A  debtor  who  allows  an  account  against  him 
to  become  stated,  by  omitting  to  dispute  the  same  when  presented,  does  not 
thereby  waive  the  statute.  Bucklin  v.  Chaplin.  1  Lans.  (N.  Y.)447;  Reynolds 
v.  Collins,  3  Hill  (N.  Y.)  37.  An  indorsement  on  a  note,  made  at  about  the  time 
a  note  was  executed,  "  If  not  paid  I  request  indulgence,"  is  not  such  a  con- 
tinued request  as  estops  the  debtor  from  pleading  the  statute.  Carr  v.  Robinson, 
8  Bush  (Ky.)  269. 

*  Senseman  v.  Hershman,  S2  Penn.  St.  83.  Striking  a  balance,  and  the  settle- 
ment of  an  account,  clearly  admits  a  sincere  indebtedness.  McClelland  v.  West, 
70  Penn.  St.  183;  Johns  v.  Lantz,  63  id.  324. 

3  Yaw  v.  Kerr,  47  Penn.  St.  333;  Airy  v.  Smith,  1  Phila.  (Penn.)  337;  Bailey 
v.  Bailey,  14  S.  &  R.  (Penn.)  195;  Patton  v.  Hassinger,  69  Penn.  St.  311;  Wat- 
son v.  Stem,  76  id.  121;  Norton  v.  Carpenter,  2  W.  N.  C.  (Penn.)  306;  Guier 
v.  Pearce,  2  Browne  (Penn.)  35;  Lyon  v.  Marclay,  1  Watts  (Penn.)  271;  Fries 
v.  Boisselet,  9  S.  &  R.  (Penn.)  123;  Beasley  v.  Evans,  35  Miss.  192;  Phelps  v. 
Sleeper,  17  N.  H.  332;  Horner  v.  Starkey,  27  111.  13;  Sennott  v.  Horner,  30  id. 
429;  Grayson  v.  Taylor,  14  Tex.  672;  Hazlebacker  v.  Reeves,  9  Penn.  St.  258; 
Webber  v.  Cochrane,  4  Tex.  31;  Estate  of  Wetham,  6  Phil.  (Penn.)  161;  Lau- 
rence v.  Hopkins,  13  Johns.  (N.  Y.)  288. 

4  Boss  v.  Hershman,  33  Leg.  Int.  (Penn.)  306;  Eckert  v.  Wilson,  12  S.  &  R. 
(Penn.)  393;  Gilkyson  v.  Larue,  2  W.  &  S.  (Penn.)  213;  Crist  v.  Garner,  2  P.  & 
W.  (Penn.)  251;  Allison  v.  Pennington,  7  W.  &  S.  (Penn.)  iBo;  Gleim  v.  Rise, 
6  Watts  (Penn.)  44;  Ayers  v.  Richards,  12  111.  146;  Stockett  v.  Sasscer,  8  Md. 
374.;  Wakeman  v.  Sherman,  9  N.  Y.  88;  Lowry  v.  Dubose,  2  Bailey  (S.  C.)  425; 
Smallwood  v.  Smallwood,  2  D.  &  B.  (N.  C.)  L.  330;  Mastin  v.  Waugh,  id.  517; 
Loomis  v.  Decker,  1  Daly  (N.  Y.  C.  P.)  186;  Hancock  v.  Bliss,  7  Wend.  (N.  Y.> 
2^7;  Cocks  v.  Weeks,  7  Hill  (N.  Y.)  45;  Bradley  v.  Field,  3  Wend.  (N.  Y.)  272; 
Allen  v.  Webster,  15  id.  284;  Bloodgood  v.  Bruen.  8  N.  Y.  362;  Bangs  v.  Hall, 
7.  Pick.  (Mass.)  368;  Mumford  v.  Freeman,  8  Met.  (Mass.)  432;  Bailey  v.  Crane, 
21  Pick.  (Mass.)  323. 

•Senseman  v.  Hershman,  82  Penn.  St.  83;  Allison  v.  James,  9  Watts  (Penn.> 


§  70.]  ACKNOWLEDGMENTS.  195 

extent  and  form  as  to  preclude  hesitation  as  to  the  debtor's 
meaning,1  and  so  as  to  enable  the  court  to  apply  its  terms  as  the 
debtor  intended  they  should  be  applied.-  The  laxity  of  the 
rules  formerly  existing  operated  as  a  virtual  repeal  of  the  statutes 
by  judicial  legislation,  rather  than  a  fair  application  of  the  rules 
of  construction;  and  in  this  branch  of  the  law  the  courts  have 
exhibited  more  inconsistency  and  more  proneness  to  go  wrong, 
to  carry  out  their  notions  of  justice,  than  in  any  other  since 
courts  have  existed.  The  rules  stated  do  not  preclude  the  rais- 
ing of  a  promise  from  the  recognition  of  a  debt,  where  there  is 
nothing  said  or  done  by  the  debtor  inconsistent  with  an  intention 
to  pay  it,3  but  are  calculated  to  effectuate  the  intention  of  the 
statutes,  by  giving  the  debtor  the  benefit  of  their  protection, 
except  in  those  cases  where  he  has  fairly  deprived  himself 
thereof,  by  having  said  or  done  that  which  the  law  can  fairly 
regard  as  the  foundation  for  an  implied  promise  to  pay  the  debt. 
Formerly,  if  even  in  a  casual  conversation  with  a  stranger  to  the 
debt  the  debtor  spoke  of  a  claim  barred  by  the  statute,  as  an 
existing  debt  against  him,  although  at  the  same  time  he  declared 
his  intention  not  to  pay  it,4  the  naked  admission  of  the  debt  was 
deemed  sufficient,  although  the  circumstances  were  such  as  to 
clearly  show  that  he  intended  to  avail  himself  of  the  benefit  of 
the  statute;5  and  even  though  it  was  made  after  action  brought, 
and  after  he  had  pleaded  the  statute  thereto.6  That  the  courts 
ever  went  so  far  astray  seems  incredible ;  at  the  present  time  a 

380;  Farley  v.  Kustenbader,  3  Perm.  St.  418;  Webster  v.  Nevvbold,  41  id.  482; 
Emerson  v.  Miller,  27  id.  278. 

1  Berghaus  v.  Calhoun,  6  Watts  (Penn.)  219;  Miller  ?'.  Baschore,  83  Penn.  St. 
356:  Magee  v.  Magee,  10  id.  172;  Wolfensberger  v.  Young,  47  id.  516;  Harbold 
v.  Kuntz,  16  id.  210. 

1  Suter  v.  Sheeler,  22  Penn.  St.  308;  Shitler  v.  Bremer,  23  id.  413. 

3  Watson  v.  Stem,  76  Penn.  St.  121;   Patton  v.  Hassinger,  69  id.  311. 

4Cobham  v.  Mosely,  2  Hayvv.  (N.  C.)  6;  Dean  v.  Pitts,  10  Johns.  (N.  Y.)  35; 
Mosher  v.  Hubbard,  13  id.  510. 

s  Austin  v.  Bostwick,  9  Conn.  496;  Keplinger  v.  Griffith,  2  G.  &  J.  (Md.)  296; 
Mitchell  v.  Mitchell,  ir  G.  &  J.  (Md.)  388;  Carroll  v.  Ridgeway,  8  Md.  328; 
Murray  v.  Coster  20  Johns.  (N.  Y.)  576;  Shepperd  v.  Murdock,  3  Murph.  (N.  C.) 
218;  Cadmus  v.  Dumon,  1  N.  J.  L.  176.  In  Richard  v.  Hannay,  4  East,  604, 
the  defendant,  in  an  affidavit  to  the  court  for  leave  to  file  a  plea  of  the  statute, 
stated  that,  "  since  the  bill  of  exchange  on  which  the  action  was  founded 
became  due,  no  demand  for  payment  had  been  made  on  him,"  and  it  was  held 
such  an  acknowledgment  of  the  debt  as  removed  the  statute  bar. 

•Stevens  v.  Hewitt,  30  Vt.  262. 


ig6  STATUTES   OF    LIMITATION.  [CHAP.  VII. 

more  consistent  doctrine  prevails,  and  the  old  theories  are  uni- 
versally discarded. 

Where  a  person  admits  that  the  claim  once  existed,  but  also 
says  that  it  has  been  paid  in  a  particular  mode,  the  plaintiff  can- 
not, by  proving  that  the  claim  has  not  been  paid  in  that  way, 
revive  the  debt.1  Where  a  general  indebtedness  exists,  a  part  of 
which  is  barred  by  the  statute  and  a  part  not,  a  general  acknowl- 
edgment will  not  remove  the  bar,  because  it  may  have  been 
intended  simply  to  apply  to  the  indebtedness  within  the  statute.2 

'•  Bangs  v.  Hall,  2  Pick.  (Mass.)  368;  Cowan  v.  Magauran,  Wall.  C.  C.  66.  In 
Marshall  v.  Dalliber,  5  Conn.  480,  where  the  defendant  admitted  that  the  note 
sued  upon  was  originally  just,  but  insisted  that  it  had  been  paid  by  his  wife's 
services,  and  it  was  proved  that  the  note  had  not  been  so  paid,  the  court  held 
that  the  admission  did  not  remove  the  statute  bar.  See  Clementson  v.  William- 
son, 8  Cranch  (U.  S.)  72;  Sands  v.  Gelston,  15  Johns.  (N.  Y.)  511 ;  Lord  v.  Shaler, 
3  Conn.  131;  Hancock  v.  Bliss,  7  Wend.  (N.  Y.)  267;  Moore  v.  Columbia  Bank, 
6  Pet.  (U.  S.)  86;  Gaylord  v.  Van  Loan,  15  Wend.  (N.  Y.)  308.  Tillet  v.  Linsey, 
6  J.  J.  Mar.  (Ky.)  337;  Purdy  v.  Austin,  3  Wend.  (N.  Y.)  187;  Cambridge  v. 
Hobart,  10  Pick.  (Mass.)  232;  Clarke  v.  Dutcher,  9  Cow.  (N.  Y.)  674;  Tichenor 
v.  Colfax,  4  N.  J.  L.  153;  Exeter  Bank  v.  Sullivan,  6  N.  H.  124;  Russell  v. 
Copp,  5  id.  154;  Gold  v.  Whitcomb,  14  Pick.  (Mass.)  188;  Bailey  v.  Bailey,  14 
S.  &  R.  (Penn.)  195;  Brackett  v.  Mountfort,  12  Me.  72;  Frey  v.  Kirk,  4  G.  &  J. 
(Md.)  509. 

8  Morgan  v.  Walton,  4  Penn.  St.  32;  Suter  v.  Sheeler,  22  id.  308.  In  Wesser 
v.  Stein.  97  Penn.  St.  322,  Mercur,  J.,  said-  "  It  is  settled  that  the  acknowledg- 
ment or  admission  must  be  a  clear  and  unambiguous  recognition  of  an  existing 
debt,  and  so  distinct  and  expressive  as  to  preclude  hesitation  as  to  the  debtor's 
meaning,  and  as  to  the  particular  to  which  it  applies,  and  must  be  consistent 
with  a  promise  to  pay."  In  McClelland  v.  West,  59  Penn.  St.  4S7,  it  was  held 
that  the  words,  "  I  agree  to  settle  this  bill,"  were  not  sufficient  to  remove  the 
statute  bar,  as  they  only  amounted  to  a  promise  "  to  examine  and  adjust  it," 
and  did  not  warrant  the  implication  of  a  promise  to  pay.  When  a  debtor,  on 
being  presented  with  a  bill,  said,  "  I  will  attend  to  it,"  it  was  held  not  to  amount 
to  an  acknowledgment  of,  or  promise  to  pay,  the  debt.  Marqueze  v.  Bloom,  22 
La.  Ann.  328.  But  in  Bliss  v.  Allard,  49  Vt.  350,  a  letter  in  which  the  debtor 
spoke  of  a  "  settlement,"  and  expressed  a  willingness  "  to  leave  it  out  to  be 
settled,"  but  thought  they  had  better  settle  it  themselves  was  held  sufficient. 
See  Wesser  v.  Stein,  97  Penn.  St.  322;  Suter  v.  Sheeler,  22  id.  310.  Where  a 
debtor  gives  to  his  creditor  the  note  of  a  third  person,  payable  at  a  future  day, 
as  collateral  security  for  a  debt  upon  which  the  statute  has  begun  to  run,  it 
operates  as  an  acknowledgment  of  the  whole  debt,  the  same  as  a  part  payment 
in  money  would,  but  it  only  operates  to  suspend  the  statute  and  start  it  anew, 
from  the  time  of  the  delivery  of  such  note;  and  a  payment  upon  such  note  by 
ih"  person  against  whom  the  note  so  given  as  collateral  security  exists  does  not 
operate  as  a  payment  by  the  debtor  himself,  or  have  the  effect  to  renew  the 
principal  debt.  Smith  v.  Ryan,  66  N.  Y.  352.  The  original  debt  must  first  be 
established,    then   a   clear,    distinct,    and    unequivocal   acknowledgment    made 


§  71.]  ACKNOWLEDGMENTS.  I97 

Sec.  71.  Bare  Acknowledgment.  —  A  naked  acknowledgment 
of  a  debt  as  due  and  unpaid,  not  coupled  with  any  condition  or 
words  indicating  an  intention  not  to  pay,  is  held  in  some  of  the 
States  sufficient  to  remove  the  statutory  bar.1     But  in  all  cases, 

within  six  years  is  sufficient  to  remove  the  statute  bar.  Wesser  v.  Stein,  97 
Penn.  St.  326;  Watson  v.  Stem,  76  id.  121;  Palmer  v.  Gillespie,  9  W.  N.  C. 
(Penn.)  535.  In  Louisiana,  it  is  held  that  parol  evidence  is  admissible  to  prove 
an  acknowledgment  of  a  debt  before  the  statute  has  run  thereon.  Bernsiein  v. 
Hicks,  21  La.  Ann.  179;  Harrell  v.  White,  21  id.  195;  and  while  the  debtor  is 
alive.  But  it  is  held  inadmissible  to  prove  an  acknowledgment  of  a  party 
deceased  for  the  purpose  of  establishing  liability  against  his  estate.  Succession 
of  Hillebrandt,  21  La.  Ann.  350.  So,  too,  it  is  held  inadmissible  to  establish  a 
renunciation  or  waiver  of  the  defense  of  the  statute  after  the  debt  is  barred. 
Offut  v.  Chapman,  21  La.  Ann.  293.  In  Iowa,  by  §  1670  of  the  Code,  an  admis- 
sion that  a  debt  is  due  and  unpaid  is  given  the  same  effect  to  take  it  out  of  the 
operation  of  the  statute  as  a  new  promise. 

1  Black  v.  Reybold,  3  Harr.  (Del.)  528;  Lee  v.  Polk,  4  McCord  (S.  C.)  215; 
Lord  v.  Shaler,  3  Conn.  131;  Elder  v.  Dyer,  26  Kan.  604;  Bissell  v.  Jaudon,  16 
Ohio  St.  498.  As  that  "  it  is  just  and  unpaid."  Beasley  v.  Evans,  35  Miss.  192. 
"  The  debl  is  a  just  and  honorable  debt,  and  I  do  not  consider  it  outlawed." 
Estate  of  Wetham,  6  Phil.  (Penn.)  161.  "  It  is  a  debt  which  I  shall  have  to 
pay,  and  intend  to  pay."  Hall  v.  Creswell,  12  G.  &  J.  (Md.)  36.  A  bare 
acknowledgment  of  a  debt  made  before  the  statute  has  run,  Rodrigue  v.  Fronty, 
2  Brev.  (S.  C.)  31;  Hazlebacker  v.  Reeves,  9  Penn.  St.  258,  admitting  that  a 
note  is  genuine,  though  at  the  same  time  he  refused  to  pay  it,  has  been  held 
sufficient,  Cobham  v.  Mosely,  2  Hayw.  (NT.  C.)  6;  Cobham  v.  Administrators, 
id.  6;  but  this  is  inaccurate,  because  it  expressly  rebuts  any  promise.  An 
acknowledgment  lhat  certain  notes  against  him  exist  in  the  plaintiff's  favor,  but 
that  he  has  an  account  to  go  against  them,  with  a  promise  to  call  in  a  certain 
time  and  have  the  notes  and  accounts  settled,  is  sufficient.  Chapin  v.  Warden, 
15  Vt.  560.  So  a  statement  that  he  is  willing  to  settle  the  claim  if  established, 
but  accompanied  with  a  denial  that  it  can  be  established,  has  been  held  suffi- 
cient, if  the  claim  is  established.  Paddock  v.  Colby,  18  Vt.  485.  The  general 
rule  is  that  an  acknowledgment,  to  take  a  debt  out  of  the  statute,  must  be  an 
unqualified  acknowledgment  of  a  previous  subsisting  indebtedness  which  the 
party  is  willing  to  pay,  Weaver  v.  Weaver,  54  Penn.  St.  152;  Jackson  v.  People, 
40  111.  405;  Conover  v.  Conover,  1  N.  J.  Eq.  403;  Turner  v.  Martin,  4  Robt. 
(N.  Y.)  661;  Allen  v.  Webster,  15  Wend.  (N.  Y.)  284;  Waples  v.  Layton,  3  Harr. 
(Del.)  50S;  Stafford  v.  Richardson,  15  Wend  (N.  Y.)  302;  Horlbeck  v.  Hunt,  1 
McMull.  (S.  C.)  197;  Sherman  v.  Wakeman,  n  Barb.  (N.  Y.)  254,  9  N.  Y.  85; 
and  that  the  debt  continues  due  at  the  time  of  the  acknowledgment.  Mellick  v. 
De  Seelhorst,  1  111.  171;  Bangs  v.  Hull,  2  Pick.  (Mass.)  368;  Barlow  v.  Bellamy, 
7  Vt.  54;  French  v.  Frazier,  7  J.  J.  Mar.  (Ky.)  425;  Russel  v.  Gass,  Mart.  &  Y. 
(Tenn.)  270;  Wetzell  v.  Bussard,  n  Wheat.  (U.  S.)  310;  Belles  v.  Belles,  12  N. 
J.  L.  339;  Purdy  v.  Austin,  3  Wend.  (N.  Y.)  187.  But  the  doctrine  of  Paddock 
v.  Colby,  supra,  is  sustainable,  upon  the  ground  that  what  was  said  by  the 
debtor  was  not  a  mere  acknowledgment  but  an  express  promise  to  pay  the  debt, 
if  any  existed;  in  other  words,  an  express,  conditional  promise  to  pay,  and  the 


198  STATUTES    OF    LIMITATION.  [CHAP.   VII. 

except  where  the  statute  otherwise  provides,  it  is  held  that  the 
acknowledgment  must  be  such  that  a  promise  to  pay  the  debt  can 
fairly  be  implied  therefrom,  or  it  is  inoperative.  That  is,  it  must 
be  made  in  such  a  manner   and   under  such  circumstances  as  to 

condition  is  satisfied,  and  the  promise  made  absolute  when  the  debt  is  estab- 
lished. An  admission  that  a  note  sued  on  was  made  by  the  defendant,  but  that 
he  supposed  it  was  paid  by  a  joint  maker,  which  he  could  prove,  has  been  held 
sufficient.  Dean  v.  Pitts,  10  Johns.  (N.  Y.)  35;  Mosher  v.  Hubbard,  13  id.  510. 
But  see  Bell  v.  Rowland,  Hard.  (Ky.)  301,  where  an  acknowledgment  bv  the 
defendant  was  that  he  once  owed  the  debt,  but  he  supposed  his  brother  paid  it, 
and  if  his  brother  had  not  paid  it,  he  owed  it  yet,  was  held  insufficient  to  remove 
the  statute  bat.  See  also  Gardner  v.  Tudor,  8  Pick.  (Mass.)  206.  In  Brackett 
v.  Mounttort,  12  Me.  72,  an  acknowledgment  that  the  "  debt  was  once  due,  but 
that  he  had  paid  it  years  before  by  having  an  account  against  him,"  was  held 
not  sufficient,  although  the  defendant  filed  no  accounl  in  offset,  and  offered  no 
proof  lhat  he  ever  had  an  account  against  the  plaintiff.  In  Penn  v.  Crawford. 
16  La.  Ann.  255,  the  defendant  stated  that  "  he  thought  the  note  had  been  settled, 
but  if  not,  he  would  arrange  it."  Upon  a  later  occasion  he  said  "  he  would 
see  the  plaintiff  and  settle  the  amount  of  the  note;  "  and  it  was  held  that  this 
evidence  was  too  doubtful,  if  uncorroborated,  to  interrupt  the  statute.  In  a 
Maryland  case,  Frey  v.  Kirk,  4  G.  &  J.  (Md).  509,  the  maker  of  a  note,  when 
shown  it,  and  asked  if  it  was  his,  replied  "  yes;  "  but  when  asked  what  arrange- 
ments he  could  make  of  it,  replied,  "As  to  that  I  cannot  say;  "  and  upon  being 
told  that  if  it  was  not  settled  it  would  be  sued,  said,  "  You  may  save  yourself 
the  trouble,  as  1  have  taken  the  benefit  of  the  insolvent  law;  "  ii  was  held  that 
this  could  not  he  construed  into  an  existing  indebtedness,  so  as  to  remove  the 
slatutoty  bar.  See  also  Danforth  v.  Culver,  11  Johns.  (N.  Y.)  146,  where  the 
defendant  admitted  the  execution  of  the  note  by  him,  but  said  that  it  was  out- 
lawed, and  he  intended  to  avail  himself  of  the  statute;  and  it  was  held  not  a 
sufficient  acknowledgment  to  take  the  case  out  ot  the  statute.  See  also  Smith 
v.  Freel,  Add.  (Penn.)  291,  where  an  admission  of  the  genuineness  of  a  note, 
accompanied  with  a  statement  that  he  had  paid  it,  was  held  not  sufficient. 
A  letter  which  acknowledges  a  subsisting  indebtedness  is  sufficient  to  take  the 
rase  out  of  the  statute,  as  it  is  in  writing  and  signed  by  the  party  to  be  charged. 
Chace  v.  Higgins,  1  T  &  C.  (N.  Y.)  220.  But  a  letter  in  effect  acknowledging 
the  existence  of  an  indebtedness,  and  proposing  a  compromise,  but  distinctly 
avowing  a  determination  not  to  pay  if  the  compromise  is  rejected,  will  not 
remove  the  statute  bar,  Creuse  v.  Defiganiere,  10  Bosw.  (N.  Y  )  122;  nor  is  an 
admission  of  the  original  indebtedness  in  an  answer  under  oath,  denying  the 
defendant's  liability  to  pay  it.  Com.  Mut.  Ins.  Co.  v.  Brett,  44  Barb.  (N.  Y.) 
489.  See  also  Bloodgood  v.  Bruen,  8  N.  Y.  362,  where  such  an  admission  in  an 
answer,  filed  to  a  bill  in  equity  by  a  third  person,  was  held  not  sufficient.  It  is 
not  sufficient  to  take  the  case  out  of  the  statute  that  the  claim  should  be  proved 
•  r  be  acknowledged  to  have  been  originally  just;  it  must  go  to  the  fact  that  it 
is  Mill  due.  Clementson  v.  Williams,  8  Cranch  (U.  S.)  72;  Andrews  v.  Brown, 
1  Eq,  Ca.  Ab.  305,  12  Owen's  Abr.  192;  Yea  v.  Fouraker,  2  Burr.  1099;  True- 
in  hi  7-.  Fenton,  2  Coup.  548;  Lloyd  v.  Maund,  2  T.  R.  700;  Rucker  v.  Harmony 
I    1st,  604,  n.;   Lawrence  t.    Worrall,    Peake's  Cas.  93;  Jackson  v.  Fairbanks. 


§  71.]  ACKNOWLEDGMENTS.  IQ9 

indicate  a  willingness  and  intention  to  pay  it.1  Thus,  where  a 
debtor,  upon  being  presented  with  a  claim,  said,  "  I  will  attend 
to  it,"  it  was  held  not  such  an  acknowledgment  as  would  remove 
the  statute  bar.  Nor  where  a  debtor  under  proceedings  in 
insolvency  inserts  in  a  schedule  of  his  debts,  filed  and  sworn  to 
by  him,  a  claim  which  is  barred  by  the  statute,  can  it  be  said  that 
he  thereby  acknowledges  the  debt  under  such  circumstances  as 
will  support  an  implied  promise  to  pay  the  debt.3  Such  an 
acknowledgment  may  be  said  to  be  compulsory,  as  the  debtor  is 
compelled  by  law  to  embrace  it  in  his  schedule,  or  take  the 
chances  of  having  the  debt  urged  against  him  thereafter.  Under 
the  present  state  of  the  law  it  can  have  no  more  effect  to  renew  the 
debt  than  a  compulsory  payment  would  have.4     But  embracing 

1  H.  Bl.  340;  Baillie  v.  Lord  Ichiquin,  r  Esp.  435;  Clarke  v.  Bradshavv,  3  id. 
155;  Peters  v.  Brown,  4  id.  46;  Bryan  v.  Horseman,  4  East,  599,  Gainsford  v. 
Grammar,  2  Camp  9;  Sluby  v.  Champlin,  4  Johns.  (N.  Y.)  461;  Leaper  v. 
Tatton,  16  East  418;  Dean  v.  Pitls,  10  Johns.  (N.  Y.)  35.  "  The  principle  which 
governs  in  the  construction  of  these  statutes  is,  that  the  presumption  arises 
that  the  defendant,  from  the  lapse  of  time,  has  lost  the  evidence  which  would 
have  availed  him  in  his  defense,  if  seasonably  called  upon  for  payment.  But 
when  this  presumption  is  rebutted  by  an  acknowledgment  of  the  defendant 
within  six  years,  the  contract  is  not  within  the  intent  of  the  statute."  Baxter 
v.  Penniman,  8  Mass.  133;   Lord  v.  Shaler,  3  Conn.  131;  Thompson  v.  Osborn, 

2  Stark.  98. 

1  Georgia  Ins.  Co.  v.  Elliott,  Taney  (U.  S.)  130. 

s  "  It  does  not,"  say  the  court,  "  import  an  acknowledgment  of  the  plaintiff's 
right.  The  staiement  that  a  debtor,  will  attend  to  a  demand  does  not  prove 
hat  the  creditor  has  a  right  to  demand  payment,  or  that  the  bill  is  correct,  and 
the  debtor  bound  to  pay  it;  at  most  it  merely  implies  that  the  debtor  will 
inquire  into  its  correctness,  and  his  liability  to  pay  it."  Marqueze  v.  Bloom, 
22  La.  Ann.  328. 

*  Georgia  Ins.  Co.  v.  Elliott,  supra;  Richardson  v.  Thomas,  13  Gray  (Mass.) 
381;  Roscoe  v.  Hale,  7  id.  274;  Hidden  v.  Cozzens,  2  R.  I.  401;  Christy  v. 
Flemington,  10  Penn.  St.  129;  Stoddard  v.  Doane,  7  Gray  (Mass.)  387;  Brown 
v.  Bridges,  2  Miles  (Penn.)  424. 

*  New  York  Belting  Co.  v.  Jones,  22  La.  Ann.  530.  If  a  debtor  orally  promises 
lhat  if  the  creditor  will  wait  he  shall  be  paid  from  a  provision  to  be  made  for 
him  in  the  debtor's  will,  and  if,  afterwards,  the  debtor  makes  a  will  containing 
a  general  bequest  for  the  creditor,  and  subsequently  revokes  this  will,  nothing 
has  been  done  which  affects  or  suspends  the  running  of  the  statute.  Petrie  v. 
Mott,  38  Hun  (N.  Y.)  259.  Under  a  foreclosure  of  a  mortgage  more  than  twenty 
years  old,  the  fact  that  the  defendant  took  a  deed  for  part  of  the  premises, 
within  twenty  years,  and  accepted  the  title  subject  to  the  mortgage,  is  a  suffi- 
cient acknowledgment  to  take  the  case  out  of  the  statute.  Moore  v.  Clark,  40 
N.  J.  Eq.  152.  Where,  under  the  New  Jersey  statute  declaring  twenty  years' 
possession  of  mortgaged  land  by  the  mortgagee,  after  default,  a  bar  to  the  right 


200  STATUTES   OF    LIMITATION.  [CHAP.   VII. 

such  a  debt  in  a  schedule  of  his  debts,  made  at  the  time  of 
the  making  of  his  will,  being  a  voluntary  act,  and  evincing  an 
expectation  and  willingness  that  it  be  paid,  has  been  held  suffi- 
cient,1 although  even  this  doctrine  is  doubtful;  and  in  Massachu- 
setts,2 where,  after  the  testator's  death,  a  mortgage-deed  duly 
executed,  but  not  delivered,  was  found  among  the  debtor's 
papers,  to  secure  the  payment  of  a  demand  barred  by  the  statute, 
it  was  held  not  a  sufficient  acknowledgment  of  the  indebtedness 
to  take  the  debt  out  of  the  statute;  and  this  would  not  seem  to 
be  inconsistent  with  the  doctrine  of  the  Tennessee  case,  because 
in  that  case  nothing  more  remained  to  be  done  to  give  validity  to 
the  will;  while  in  the  Massachusetts  case  delivery  was  essential 
to  give  validity  to  the  mortgage,  and  never  having  been  delivered, 
it  was  inoperative.  In  Missouri  it  is  held  that  a  demand  is  not 
taken  out  of  the  operation  of  the  statute  of  limitations  by  a  writ- 
ten acknowledgment  found  among  the  debtor's  papers  after  his 
death.3 

of  redemption,  after  such  possession  had  continued  for  twenty-nine  years  the 
mortgagee  attempted,  in  pursuance  of  his  contract  of  sale,  to  procure  a  strict 
foreclosure,  it  was  held  not  an  admission  of  the  right  to  redeem,  which  consti- 
tuted a  waiver  of  the  bar.  Chapin  v.  Wright,  41  N.  J.  Eq.  438.  A  claim 
against  a  deceased  debtor,  was  duly  proved  in,  and  passed  by  the  Orphan's 
Court.  With  leave  of  court  the  administrator  retained  money  to  pay  it  with 
other  claims,  and  his  account  so  showed.  It  was  held  that,  when  sued,  he 
could  plead  the  statute.  Washington  Market  Co.  z.  Beckley,  4  Mackey  (D.  C.) 
163.  When  the  statute  declares  that  only  a  written  promise  shall  take  a  debt 
out  of  operation  of  the  statute,  the  doctrine  of  estoppel  has  no  application  to  an 
oral  promise.  Hill  v.  Perrin,  21  S.  C.  356.  A  memorandum  unsigned  and 
undelivered  is  not "  a  written  acknowledgment  of  an  existing  liability,"  remov- 
ing the  bar  of  the  statute.  Abercrombie  v.  Butts,  72  Ga.  74,  53  Am.  Rep.  832. 
A  joint  suit  against  a  firm  is  not  saved  from  the  bar  of  the  statute  by  the  indi- 
vidual acknowledgment  of  one  member  and  his  promise  to  pay.  Ford  w.  Clark. 
72  Ga.  760.  An  acknowledgment  is  sufficient,  although  contained  in  an  appli- 
cation made  by  a  debtor  to  an  insurance  company  for  a  policy  on  his  life,  when 
made  at  the  request  of  the  debtor  and  for  his  benefit;  and  the  acknowledgment 
may  be  made  before  the  debt  is  barred;  to  enable  the  surety  again  to  become 
liable,  there  must  be  a  new  consideration.  His  promise,  not  based  on  a  con- 
sideration, will  not  bind  him.     Bridges  v.  Blake,  106  Ind.  332. 

:  Rogers  v.  Southern,  4  Baxter  (Tenn.)  67. 

*  Mf-rriam  v.  Leonard,  6  Cush.  (Mass.)  151. 

3  Allen  v.  Collier,  70  Mo.  138.  The  court  said:  "There  is  a  conflict  of  the 
authorities  as  to  whether  an  acknowledgment  or  promise  in  writing,  signed  by 
the  party  to  be  bound,  if  made  to  a  stranger,  would  be  sufficient  to  take  a  case 
from  under  the  operation  of  the  statute  of  limitations;  but  there  is  no  conflict 
as  to  the  necessity  for  such  a  promise  of  acknowledgment  being  made  to  some 


§72.] 


ACKNOWLEDGMENTS.  201 


SEC.  72.  Promise  to  Settle.  —  A  mere  promise  "to  settle"  a 
demand  has  been  held  not  sufficient  to  support  a  promise  to  pay- 
it.1  But  in  South  Carolina  a  promise  "  to  settle  "  has  been  held 
equivalent  to  a  promise  to  pay;a  and  a  similar  rule  has  been 
adopted  in  North  Carolina.3  The  above  rule  has  also  been  declared 
in  Vermont4  and  in  Pennsylvania,5  although  in  some  of  the  earlier 
cases   in  the   latter   State   a   different  rule   prevailed.6  (a)     Such 

person,  either  to  the  creditor  or  his  representative,  or  to  a  stranger.  A  promise 
or  acknowledgment  implies  that  it  is  made  to  somebody,  and  in  every  promise 
there  must  necessarily  be  a  promisor  and  promisee.  A  mere  writing  acknowl- 
edging a  debt,  which  is  retained  by  the  person  making  it,  and  which  is  never 
delivered  to  the  creditor  or  any  one  else,  cannot  have  the  effect  of  preventing 
the  operation  of  the  statute." 

'Bell  v.  Crawford,  8  Gratt.  (Va.)  no;  Succession  of  Jewell,  n  La.  Ann.  83. 
Where  the  items  of  an  account  are  read  to  a  party,  and  he  admits  the  correct- 
ness of  each  item,  and  of  the  whole  account,  but  as  to  certain  items  states  that 
he  thought  the  whole  or  a  part  of  them  had  been  paid  by  his  son,  and  that  he 
thought  the  account  was  correct,  and  that  he  would  see  his  creditor,  and  settle 
with  him;  such  admissions  do  not  show  a  new  promise  so  as  to  take  the  case 
out  of  the  statute.     Ayers  v.  Richards,  12  111.  146. 

'Johnson  v.  Bounethea,  3  Hill  (S.  C.)  15. 

3McLin  v.  McNamara,  2  D.  &  B.  (N.  C.)  Eq.  82. 

4  Brayton  v.  Rockwell,  41  Vt.  621.  See  also  Currier  v.  Lockwood,  40  Conn.  349. 
In  Vermont,  as  elsewhere,  the  rule  is  that  the  question  as  to  whether  a  promise 
to  settle  a  demand  amounts  to  a  promise  to  pay  it,  will  depend  upon  all  the 
circumstances  attending  the  use  of  the  expression.  See  Bowman  v.  Downer,  28 
Vt.  532;   Hunter  v.  Kittredge,  4r  Vt    359. 

5  Weaver  v.  Weaver,  54  Penn.  St.  152. 

*  Jones  v.  Moore,  5  Binn.  (Penn.)  573;  Wells  v.  Pyle,  1  Phila.  (Penn.)  21; 
Patton  v.  Ash,  7  S.  &  R.  (Penn.)  116;  Miles  v.  Moodie,  3  id.  211. 

(a)  In    England,    these    words    in    a  acknowledgment  waiving  the  statute, 

letter:     "  I  am  really  sorry  to  keep  you  but  words  like  these  may  amount  to  a 

waiting  so  long  for  your  money,  but  I  new  promise.     Cooper  v.  Jones  (N.  C), 

shall     b2     taking    some    money    next  38    S.    E.    28;    Gardenlaire    v.    Rogers 

month,  I   think,  without  fail,  and   will  (Tenn.  Ch.),  60  S.  W.  616.     See  Conn, 

then  try  and  settle  with  you,"  are  held  Trust   Co.    v.    Wead,   69  N.  Y.  S.   518; 

not  conditional,  and  a  sufficient  admis-  Boynton    v.    Moulton,    159    Mass.   248. 

sion  to  take  the  debt  out  of  the  statute.  So  indorsements  on  a  note  "  I  will  pay 

Pryke  1.   Hill,  7g  L.  T.  738.     See  also  this  note  at  any  time,"  and  "  good  at 

Jn   re  Buskin,    15    Reports,    117;   Buc-  any  time,"  do   not  waive  the   statute, 

c.leuch    v.   Eden,   61    L.    T.    360.     The  but  they  are  new  promises.      Rowell  v. 

debtor's    request   by    letter    to    be  fur-  Lewis,  72  Vt.  163      On  the  other  hand, 

nished  with  an  account  with  vouchers  the  debtor's   writing  that  he  might  be 

at  a  particular  time  and  place  does  not  able  to  pay  next  year,   and  "  will    be 

negative   the   implied    promise  to  pay  pleased  to  do  so  as  soon  as  I  can,"  has 

arising  from   his  admission   therein  of  been  held  sufficient  as  an  acknowledg- 

a   balance   due.     Skeel   «.    Lindsay,    2  ment.      Kahn   v.  Crawford,  59  N.  Y.  S. 

Ex.  D.  314;  Curwen  v.  Milburn,  42  Ch.  853.     See  also  Fletcher  v.  Daniels,  64 

D.  424.      A   statement    by    the    debtor  id.  861;   Conn.  Trust   Co.    v.   Wead.  67 

that  he  will  pay  as  soon  as  he  "  possi-  id.  466,  69  id.   518;   Brintnall  v.   Rice„ 

bly    can,"    or    is    "  able,"    is    not    an  71   id.  441;  ///  re  Lorrillard,    107   Fed. 


202  •     '  STATUTES   OF    LIMITATION.  [CHAP.   VII. 

a  promise  is  treated  merely  as  a  promise  to  examine  the  claims 
and  adjust  the  balance,1  and  probably  the  effect  to  be  given  to 
such  words  depends  largely  upon  the  circumstances  of  each  case,2 
and  an  acknowledgment  of  a  debt  to  be  operative  need  not  be 
entirely  by  words,  but  may  arise  both  from  what  was  said  and 
done.3  In  Louisiana'1  the  claim  sued  upon  was  presented  to  the 
debtor  upon  two  occasions.  Upon  the  first  he  said  he  "  thought 
the  note  had  been  settled,  but  if  not,  he  would  arrange  it;"  on 
the  second  occasion  he  said  "  he  would  see  the  plaintiff  and  settle 
the  amount  of  the  note;"  and  the  court  held  that  this,  of  itself, 
standing  alone,  was  not  sufficient  to  interrupt  prescription.5 

1  McClelland  v.  West,  59  Penn.  Si.  487. 

*  See  Currier  v.  Lockwood,  supra.  In  Bliss  v.  Allard,  49  Vt.  350,  a  letter  in 
which  the  debtor  spoke  of  "  settlement,"  and  expresed  his  wish  to  leave  the 
claim  out  "  to  be  settled,"  but  thought  "  they  had  better  settle  it  themselves," 
was  held  an  unequivocal  acknowledgment  of  an  unsettled  account,  and  suffi- 
cient to  take  the  claim  out  of  the  statute,  there  being  no  disavowal  of  willing- 
ness to  pay. 

3  Whitney  v.  Bigelow,  and  Currier  v.  Lockwood,  supra.  See  post,  chapter  on 
Part  Payment. 

4  Penn  v.  Crawford,  16  La    Ann.  255, 

5  In  Barnard  v.  Bartholomew,  22  Pick.  (Mass.)  291,  the  defendant  wrote  to  the 
plaintiff :  "I  will  thank  you  to  let  me  have  your  account  that  you  hold  against 
me;  also  I  will  thank  you  to  state  the  credit  you  have  given  me.  You  may 
depend  at  seeing  me  at  your  office  on  Monday  next.  I  will  endeavor  to  settle 
all  my  accounts  with  you.  Perhaps  I  shall  not  be  able  to  pay  the  money,  if 
not,  we  can  find  some  way  to  settle;  "  and  it  was  held  sufficient.  In  this  case 
there  is  enough  lo  found  a  promise  to  pay  independent  of  the  promise  to  settle. 
In  Shepherd  v.  Thompson,  122  U.  S.  231,  the  court  says:  "The  principles 
of  law  by  which  this  case  is  to  be  governed  are  clearly  settled  by  a  series  of 
decisions  of  this  court.  The  statute  of  limitations  is  to  be  upheld  and  enforced, 
not  as  resting  only  on  a  presumption  of  payment  from  lapse  of  time,  but, 
according  to  its  intent  and  object,  as  a  statute  of  repose.  The  original  debt, 
jndeed,  is  a  sufficient  legal  consideration  for  a  subsequent  new  promise  to  pay 
it,  made  either  before  or  after  the  bar  of  the  statute  is  complete.  But  in  order 
to  continue  or  to  revive  the  cause  of  action,  after  it  would  otherwise  have  been 
barred  by  the  statute,  there  must  be  either  an  express  promise  of  the  debtor  to 
pay  that  debt,  or  else  an  express  acknowledgment  of  the  debt,  from  which  his 
promise    to   pay   it    may    be    inferred.     A  mere  acknowledgment,  although   in 

Rep,   077;   Walker  v.    Freeman,  94  111.  a  new  promise.     Wilcox  v.  Clarke,  18 

App    357;  Halladay  v.  Weeks  (Mich.),  R.  I.  324. 

W.   799;    Harms    v.    Freytag,    59  Separate    conversation?   will    not  be 

Neb    35Q.      And    a   general    promise   to  considered  together  in  determining  the 

imelhing  on  account  in  a  sufficiency  of  the  acknowledgment  as 

few  d  iys    if    he  would  watt   for  him,"  a  new   promise.      Patterson   v    Neuer, 

relates  with    sufficient   distinctness  to  [65  Penn.  St.  66. 
the    '1    !'t    in    suit,   ami    is  sufficient    as 


§  73-]  ACKNOWLEDGMENTS.  203 

SEC.  73.  Failure  to  deny  Liability.  Expressions  of  Regret,  &c. 
—  The  fact  that  a  debtor,  upon  being  called  upon  for  payment, 
does  not  deny  the  validity  of  the  claim  cannot  be  regarded  as  such 
an  acknowledgment  thereof  as  will  raise  a  promise  to  pay  it. 
Thus  where,  upon  being  called  upon  for  payment,  the  defendant 
did  not  object  thereto,  but  said  "  he  thought  he  had  paid  it,  and 
had  the  receipt  at  home,"  it  was  held  not  sufficient,  even  though 
it  was  shown  that  he  had  not  paid  the  debt,  and  had  no  receipt 
therefor.1     Where  a  debtor,  among  other  things,  in  a  letter  said, 

writing,  of  the  debt  as  having  once  existed,  is  not  sufficient  to  raise  an  implica- 
tion of  such  a  new  promise.  To  have  this  effect,  there  must  be  a  distinct  and 
unequivocal  acknowledgment  of  the  debt  as  still  subsisting  as  a  personal  obli- 
gation of  the  debtor.  The  English  judges  have  repeatedly  approved  the  state- 
ment of  Mr.  (afterwards  Chief  Justice)  Jervis,  that  the  writing  musl  either 
contain  an  express  promise  to  pay  ihe  debt,  or  be  "  in  terms  from  which  an 
unqualified  promise  to  pay  it  is  necessarily  to  be  implied."  Everett  v.  Robert- 
son, 1  El.  &  El.  16,  19;  Mitchell's  Claim,  L.  R.  6  Ch.  822,  828;  Morgan  -/.  Row- 
lands, L.  R.  7  Q.  B.  493,  497,  citing  Jervis*  New  Rules  (4th  ed.),  350.  note.  And 
it  has  been  often  held  that  when  the  debtor,  in  the  same  writing  by  which  he 
acknowledges  the  debt,  without  expressly  promising  to  pay  it,  agrees  that 
certain  property  shall  be  applied  to  its  payment,  there  can  be  no  implication  of 
a  personal  promise  to  pay.  Routledge  v.  Ramsay,  8  Ad.  &  El.  221;  s.  c,  3 
Nev.  &  P.  319;  Howcutt  v.  Bonser,  3  Exch.  491;  Cawley  v.  Furnell,  12  C.  B. 
291;  Everett  v.  Robertson,  above  cited.  See  Philips  v.  Philips,  3  Hare,  281, 
299,  300;  Buckmaster  v.  Russell,  10  C.  B.  N.  S.  745,  750;  Green  v.  Humphreys, 
26  Ch.  D.  474;  s.  c,  52  L.  J.  N.  S.  Ch.  625,  628. 

1  Conwell  v.  Buchanan,  7  Blackf.  (Ind.)  537.  See  also  Brackett  v.  Mountfort, 
12  Me.  72.  In  Gardner  v.  Tudor,  8  Pick.  (Mass.)  206,  in  an  action  on  a  note  the 
defendant  said  "  he  supposed  the  nole  was  paid  by  the  land  mortgaged;  that  he 
was  willing  to  do  what  was  right;  that  he  would  make  some'small  additional 
payment  to  settle  the  business;  but  that,  if  the  plaintiff  thought  proper  to  sue 
without  taking  the  land,  he  should  resist  the  suit;  "  and  it  was  held  not  such 
an  acknowledgment  as  would  warrant  the  inference  of  a  promise  to  pay  the 
note.  In  Cambridge  v.  Hobart,  10  Pick.  (Mass.)  232,  the  defendant,  on  being 
called  upon  to  pay  a  note  against  him,  barred  by  the  statute,  admitted  that  he 
signed  the  note,  and  said  he  did  not  know  that  it  had  been  paid,  but  presumed 
it  was  due;  but  the  court  held  that  this  did  not  take  the  note  out  of  the  statute. 
See  also  Parsons  v  Northern,  etc.,  Iron  Co.,  38  111.  430;  Bangs  v.  Hail,  2 
Pick.  (Mass.)  368;  Marshall  v.  Dalliber,  5  Conn.  480.  In  Sanford  v.  Clark,  29 
Conn.  457,  where,  on  the  defendant  presenting  an  offset  to  the  plaintiff's 
demand,  the  plaintiff  pleaded  the  statute  thereto;  and  the  defendant  proved  that 
at  the  trial  below  the  plaintiff,  for  the  purpose  of  dispensing  with  a  witness  to 
prove  that  he  admitted  the  debt  to  be  due  on  December  20,  1852,  expressly 
admitted  that  he  owed  the  defendant  the  debt  claimed;  that  the  same  was  a 
just  debt,  and  had  never  been  paid,  and  was  still  unpaid  for  anything  he  knew; 
but  that  ha  supposed  it  had  been  handed  to  his  assignee,  he  having  several 
years  before  made  an  assignment  in  insolvency;  and  he  also  testified,  on  cross- 


204  STATUTES    OF    LIMITATION.  [CHAP.   VII. 

"  I  feel  ashamed  of  it  standing  so  long,"  this  being  the  strongest 

examination,  "  I  say  now  that  the  defendant  s  account  was  a  just  one,  and  I 
do  not  claim  I  have  ever  paid  it.  It  is  now  due,  for  anything  I  know,"  the 
court  held  that  this  did  not  remove  the  statute  bar.  An  admission  by  the  debtor 
in  his  testimony  in  the  case,  or  pleadings,  or  affidavits  filed  therein,  that  the 
debt  is  due  and  unpaid,  has  often  been  held  sufficient  to  remove  the  statute  bar 
In  Rucker  v.  Hannay,  4  East,  604,  in  an  affidavit  for  leave  to  plead  the  statute 
filed  by  the  defendant,  a  statement  that  "  since  the  bill  of  exchange  (on  which 
ihe  action  was  brought)  became  due  no  demand  for  payment  had  been  made  on 
him,"  was  held  a  sufficient  acknowledgment  to  be  left  to  the  juty  to  find  a 
promise  from.  An  admission  of  a  debt  in  an  answer  to  a  bill  in  equity  is  also 
held  sufficient.  Brigham  v.  Hutchins,  27  Vt.  569  This  is  not  in  harmony  with 
the  present  theory  and  policy  of  the  law.  The  jury,  in  order  to  find  a  promise 
to  pay,  must  find  by  what  the  debtor  said  that  he  intended  to  pay  the  debt,  and 
if  the  admission  is  contained  in  an  affidavit,  plea,  or  answer,  for  a  particular 
purpose,  without  an  intention  of  charging  himself  with  liaoility  for  the  debt_ 
no  promise  can  be  found  therefrom.  Deyo  v.  Jones,  19  Wend.  (N.  Y.)  491.  An 
admission  by  a  defendant  that  the  debt  was  once  due,  but  at  the  same  time 
claiming  that  it  has  been  paid  in  a  certain  way,  —  as  by  his  wife's  services,  — 
is  not  sufficient  to  take  the  debt  out  of  the  statute,  even  though  it  is  proved 
that  the  debt  has  not  been  paid  in  the  manner  stated.  Marshall  v.  Dalliber,  5 
Conn.  4S0;  Carroll  v.  Ridgaway,  8  Md.  328;  Mitchell  v.  Sellman,  5  id.  370; 
Brackett  v.  Mountfort,  12  Me.  72.  Where  the  defendant  said  that  he  was  not 
holden  to  pay  anything,  that  the  contract  could  never  be  enforced  in  law,  and 
that  he  would  never  pay  anything,  as  it  was  an  unjust  debt,  it  was  held  that  a 
promise  could  not  be  inferred  from  such  declarations.  Laurence  v.  Hopkins, 
13  Johns.  (N.  Y.)  288.  So  where  A.,  who  had  a  claim  for  slave  hire  against  B., 
which  was  barred  by  the  statute,  said  to  B.  that  the  matter  of  the  slave's  hire 
must  be  fb:ed  up,  and  B.  assented,  and  asked  if  no  other  notes  than  his  own 
would  do,  and  A.  answered,  "  Yes,  if  t'iey  are  good,"  it  was  held  that  B.'s 
question  did  not  take  the  claim  out  of  the  operation  of  the  statute  by  a  fair  con- 
struction of  the  language,  and  that  B.  was  entitled  to  such  a  construction. 
Taylor  v.  Stedman,  it  Ired.  (N.  C.)  L.  447.  So  where  a  defendant,  on  being 
arested.  said  he  owed  the  plaintiff  money,  and  he  intended  to  pay  it,  but  would 
keep  it  as  long  as  he  could,  on  account  of  the  plaintiff's  ungentlemanly  conduct, 
it  was  held  not  sufficient  to  take  the  case  out  of  the  statute.  Fries  v.  Boisselet, 
9  S.  &  R.  (Penn.)  128;  Hudson  v.  Carey,  11  id.  10.  Where  the  maker  of  a  note, 
on  bping  called  upon  for  payment,  said  that  he  had  not  the  money,  but  would 
pay  the  note  as  soon  as  he  could,  it  was  held  that  these  words  were  too  uncertain 
an  I  ind  finite  to  constitute  a  condiiional  promise  to  pay  when  he  should  be 
abl°,  but  that  the  promise  to  pay  was  absolute.  First  Congregational  Soc.  in 
Lyme  v.  Miller,  15  M.  H.  520.  See  Butterfield  v.  Jacobs,  15  N.  H.  140;  Douglas 
v.  Blkins,  2S  N.  H.  26.  An  account  being  read  to  the  defendant,  he  said  that 
he  "  supposed  ;t  was  right,  and  was  willing  to  settle  and  give  his  note;  but  he 
he  plaintiff  had  not  given  him  all  the  credit  to  which  he  was  entitled." 
Held,  th  1 1  ihes  expressions  did  not  amount  to  a  new  promise.  Mills  v.  Taber, 
c  (ones  (N,  (  )  L.  412.  The  same  was  also  held  where  a  defendant,  in  an  affi- 
da\  it  for  a  continuant  e,  si  ited  "  that  the  action  was  founded  of  his  guaranty, 
and   by  th'-  absent  witness  he  expected  to  prove  such  laches  on  the  part  of  the 


§  7$.]  ACKNOWLEDGMENTS.  205 

expression  used  in  the  letter,  the  court  held  that  it  could  not  be 

plaintiff  as  to  discharge  him  from  his  engagement,"  Bank  of  Nevvbern  v.  Sneed 
3    Hawks.  (N.  C.)  500,  also    where  a  debtor  admitted  a  debt,  but  said  "  that  it 
was  not  in  his  power  to   pay  it  at  that  time:   but  he  hoped  to  see  the  plaintiff, 
and  to  do  something  about  il,"  Hancock  v.  Bliss,  7  Wend.  (N.  Y.)  267;  and  also 
where  the  proof    was   that   the  defendant  said  the  demand  ought  to  have  been 
paid  before,  and  that  he  would  pay  it  as  soon  as  he  conveniently  could.  Cocks 
v.  Weeks,  7  Hill  (N.  Y.)  45.      Where,  upon   the  transfer  of  a  note,  an  indorsed 
credit  was  overlooked,  so  that  the  indorsee  paid  the  full  amount  called  for  in 
the  face  of   the   paper,    and   afterwards,  on    being   applied   to  and  the  mistake 
pointed  out,  ihe  indorser  said   he  was  willing  to  do  what  an  honest  man  ought 
to  do,  and  paid  back  the  amount  of  the  credit  thus  overlooked,  —  held,  that  this 
was  no  promise,  express  or  implied,  to  pay,  nor  was  it  a  distinct  acknowledg- 
ment of  a  subsisting  debt,  so  as  to  repel  the  statute  of  limitations.     Gilmer  v. 
McMuiray,  7  Jones  (N.  C.)  L.  479.     In  a  North  Carolina  case,  where  the  plain- 
tiff, to  rebut  the  plea  of  the  statute,  proved  that  the  defendant's  testator  in  his 
last  sickness  sent  for  him,  and  was  anxious  to  settle  an  account  between  them, 
and,  not  succeeding,  made  entries  of  credits  to  which  he  was  entitled,  but  made 
no  admission  of  a  balance  due  the  plaintiff,  it  was  held  that  the  evidence  should 
be   left   to   the   jury,  with   instructions    to    find    for  the  defendant,  unless  they 
thought   that   the   testator   wished   the   account   to   be  settled  after   his  death. 
Ballenger  v.  Barnes,  3  Dev.  (N.  C.)  L.  460.     See  Thornton  v.  Crisp,  22  Miss.  52; 
Adams  v.   Torrey,  26  Miss.  499.     A  debtor,  to  whom  application  for  payment 
was   made,   said   it   was   impossible   for   him    to  pay,  but  offered  to  mortgage 
certain  real  estate  to  pay  the  debt,  and  to  pay  the  interest  every  ninety  days, 
which  offer  the   creditor  did  not  accept.     Held,  that  this  did  not  take  the  case 
out  of  the  statute  of  limitations.     Exeter  Bank  v.  Sullivan,  6  N.  H.  124.     See 
Kelley  v.  Sanborn,  9  N.  H.  46.     Generally  it  is  now  the  invariable  rule  that  no 
acknowledgment  is  sufficient  to  remove  the  bar  of  the  statute,  unless  it  is  of 
such  a  character  that  the  law  will  imply  a  new  promise  therefrom.     Moore  v. 
Stevens,  33  Vt.  308;  Jordan  v.  Hubbard,  26  Ala.  433;  Brailsford  v.  James,  3 
Strobh.  (S.  C.)  171;  Smith  v.  Talbot,   n   Ark.  666;  Cooke  v.  Ash,  Riley  (S.  C.) 
246;  Beck  v.  Beck,  25   Penn.  St.   124;   Kensington  Bank  v.   Patton,  14  id.  479; 
Patton  v.  Magrath,  1  McMull.  (S.  C.)  212;  Steele  v.  Jennings,  id.  297;  Bates  v. 
Bates,    33  Ala.  102;  Ten   Eyck   v.  Wing,   1   Mich.  40;  Tazewell   v.    Whittle,  13 
Gratt.  (Va.)  329;   Pray  v.  Garcelon,  17  Me.  145;   Miller  v.  Lancaster,  4  id.  159; 
Marseilles  v.  Kenton,  17  Penn.  St.  23S;   Walker  v.  Walton,  18  Ga.  ug;  Loftin  v. 
Aldridge,  3  Jones  (N.  C.)  L.  328;   McDowell  v.  Goldsmith,  24  Md.  214;  Sherrod 
v.  Bennett,  8  Ired.  (N.  C.)  L.  309;   Wolfe  v.  Fleming,  1  id.  290;   Phelps  v.  Stew- 
art, 12  Vt.  256;   Bailey  v.  Crane,  21    Pick.  (Mass.)  323;  Westbrook  v.  Beverley, 
19  Miss.  419;  Fortune  v.  Hayes,  5  Rich.  (S.  C.)  Eq.  112;  Lombard  v.  Pease,  14  Me. 
349;  Wolfensberger  v.  Young,  47  Penn.  St.  516;   McBride  v.  Gay,  Busb.  (N.  C.) 
L.  420;  Richardson  v.  Thomas,  13  Gray  (Mass.)  381;  Crowder  v.  Nichol,  9  Yerg. 
(Tenn.)  453;  Harman  v.   Claiborne,    1    La.  Ann.  342;   Miflin   v.   Stalker,  4  Kan. 
2S3.     It  must  be  made  by  a  person  competent  to  contract,  or  it  has  no  validity, 
as  the  law  will  not  imply  a  promise  from   an  acknowledgment,  however  strong 
may  be  its  terms,  where  the  party  making  would  not  be  bound  by  an  express 
promise.     Hannum's  Appeal,  9  Penn.  St.  471. 


206  STATUTES   OF   LIMITATION.  [CHAP.   VII. 

regarded  as  a  sufficient  foundation  for  an  implied  promise.1 
Mere  expressions  of  regret  at  not  having  paid  a  debt  barred  by 
the  statute  cannot  be  said  to  amount  to  a  waiver  of  the  protec- 
tion of  the  statute.  The  debtor  must  go  farther,  and  say  that 
which  evinces  at  least  a  willingness  to  pay  it. (a)  So  where  a 
debtor  intimates  a  willingness  to  pay  a  debt  in  specific  property, 
but  the  creditor  declines  to  accept  it,  such  offer  does  not  amount 
to  a  sufficient  acknowledgment  of  the  debt  to  take  it  out  of  the 
statute;2  and  the  same  is  true  as  to  an  offer  to  pay  a  less  sum 
than  is  due,  in  full  satisfaction  of  the  debt,  and  in  such  a  case  the 
statute  bar  is  not  removed  even  to  the  extent  of  the  sum  offered  ; 3 
although  where  the  maker  of  a  note  which  is  barred  by  the  stat- 
ute offers  to  pay  the  principal,  but  refuses  to  pay  the  interest,  it 
has  been  held  that  the  statute  bar  is  removed  as  to  the  principal, 
but  not  as  to  the  interest;4  and,  under  the  rule  now  adopted  as 
to  conditional  acknowledgments,  it  is  questionable  whether  the 
statute  is  removed  as  to  any  part  of  the  debt,  unless  the  creditor 
signifies  his  acceptance  of  the  offer,  when  made.6 

1  Wilcox  v.  Williams,  5  Nev.  206. 
*  Warren  v.  Perry,  5  Bush  (Ky.)  447. 

3  Morris  v.  Hazelhurst,  30  Md.  362;  Phelps  v.  Stewart,  12  Vt.  256.  See 
Bowker  v.  Harris,  30  id.  424;  Cross  v.  Conner,  14  id.  394 

4  Graham  v.  Keys.  29  Penn.  St.  189;  McDonald  v.  Gray,  29  Tex.  80;  Collyer 
v.  Willock,  4  Bing.  315. 

5  In  Allcock  v.  Ewen,  2  Hill  (S.  C.)  326,  the  rule  was  accurately  stated  thus: 
"  If  an  offer  is  made  differing  from  the  terms  of  the  original  contract,  it  must 
be  accepted  by  the  other  party  in  order  to  revive  the  original  debt."  An  admis- 
sion as  to  part  of  a  debt  has  been  held  good  as  to  such  part.  Oliver  v.  Gray,  1 
H.  &  G.  (Md.)  204;  Gray  v.  Lawridge,  2  Bibb  (Ky.)  284.  But  where  a  debtor, 
to  whom  application  for  payment  was  made,  said  it  was  impossible  for  him  to 
pay,  but  offered  to  mortgage  certain  real  estate  to  pay  the  debt,  and  to  pay  the 
interest  every  ninety  days,  which  offer  the  creditor  did  not  accept,  it  was  held 
that  this  did  not  take  the  case  out  of  the  statute.  Exeter  Bank  v.  Sullivan,  6 
N.  H.  124.  So  where  the  maker  of  a  note  authorized  an  agent  to  offer  thirty 
dollars  for  the  note,  and  the  offer  was  not  accepted,  it  was  held  not  to  amount 
to  a  promise  sufficient  to  take  the  case  out  of  the  statute  of  limitations;  and  the 
fact  that  the  maker  said  that  he  owed  the  debt,  but  was  not  then  able  to  pay  it, 
but  that  he  was  determined  to  pay  it.  was  held  not  to  be  evidence  of  an  uncon- 
ditional promise  to  pay.     Atwood  v.  Coburn,  4  N.  H.  315. 

{,1)  In     England,     when    the    debtor  Curwen  v.  Milburn,  42  id.  424;   Firth 

clearly  acknowledges  that  the  debt  is  ?'.  Slingsby,   58  L.  T.   481;  In  re  Wol- 

due  from   him,  a  promise  to  pay  is  in-  mershausen,  62  id.  541;  In  re  Friend,. 

ferred.      Green    t.    Humphreys,  26  Ch.  [1897]  2  Ch.  421. 
D.   474,   479;    In    "'    Bethel,   34   id.  561; 


§§  74-7^.]  ACKNOWLEDGMENTS.  20/ 

Sec.  74.  Effect  of  Aknowledgment.  —  An  acknowledgment  or 
new  promise  only  operates  to  keep  the  debt  on  foot  for  six  years 
from  the  time  when  the  acknowledgment  or  promise  was  made. 
After  the  lapse  of  that  period  it  has  no  effect  against  the  statute.1 

SEC.  75.  Offer  to  pay  in  Specific  Property.  —  A  question  may 
arise  as  to  the  effect  of  a  promise  to  pay  a  debt  barred  by  the 
statute  in  specific  articles,  as,  "  If  you  will  take  your  pay  in 
wheat,  I  will  pay  you,"  or,  "  If  you  will  take  your  pay  in  work 
I  will  pay  you,"  etc.  As  the  creditor  can  require  no  more  than 
the  debtor  agrees  to  do,  clearly,  in  order  to  save  his  debt  from 
the  operation  of  the  statute,  he  takes  the  burden  of  showing  that 
he  not  only  accepted  the  offer,  but  also  that  he  was  ready  to 
accept  the  pay  in  the  mode  named  by  the  debtor.  To  this  extent 
the  courts  in  New  York  have  gone;2  but  it  seems  to  us  that,  if 
no  time  is  fixed  upon  within  which  such  payment  is  to  be  made, 
the  creditor  must  go  farther,  and  show  that  he  called  upon  the 
debtor  for  the  specific  property,  or  to  perform  the  labor,  and  that 
he  refused  to  do  so,  unreasonably,  before  he  can  enforce  his 
claim  against  him  for  the  amount  of  his  claim  in  money.  Such 
would  seem  to  be  the  legitimate  effect  of  the  new  promise.  A 
part  payment  in  property  made  upon  a  debt  barred  by  the  stat- 
ute operates  as  an  acknowledgment  of  the  entire  debt,  in  the 
absence  of  any  restrictive  words.3 

SEC.  j6.  Promise  not  to  plead  the  Statute.  —  While  a  promise 
not  to  plead  the  statute,  whether  made  before  or  after  the  debt 
is  barred,  does  not  amount  to  an  acknowledgment  thereof  or  a 
promise  to  pay  it,  yet,  if  made  before  the  debt  is  barred,  and  in 
consideration  of  forbearance  to  sue,  and  the  creditor  does  forbear 
to  sue  upon  the  faith  of  the  promise,  it  is  binding  upon  the 
debtor,  and  at  least  has  the  effect  to  keep  the  debt  on  foot  until 
the  statutory  period,  dating  from  such  promise,  expires,4  either 
by  way  of  estoppel,5  or  as  a  conditional  promise  to  pay  the  debt 

1  Munson  v.  Rice.  18  Vt.  53. 

2  Bush  v.  Barnard,  8  Johns.  (N.  Y.)  407. 

3  Hooper  v.  Stephens,  4  Ad.  &  EI.  71.     See  Hart  v.  Nash,  2  C.  M.  &  K.  337. 

4  Paddock  v.  Colby,  18  Vt.  485;  Smith  v.  Leeper,  10  Ired.  (N.  C.)  86;  Cooper 
v.  Parker,  25  Vt.  502;  Randon  v.  Toby,  11  How.  (U.  S.)  493;  Brown  v.  State 
Bank,  10  Ark.  134. 

8  Smith's  Leading  Cases,  Am.  note,  318;  Allen  v.  Webster,  15  Wend.  (N.  Y.) 
289;  Utica  Ins.  Co.  v.  Bloodgood,  4  id.  652.     In  Gardner  v.  M'Mahon,  3  Q.  B. 


2o8  STATUTES   OF   LIMITATION.  [CHAP.  VII. 

in  case  the  plaintiff  proves  it.1  (a)  But  after  a  debt  is  actually 
barred  by  the  statute,  a  mere  naked  promise  not  to  plead  the 
statute  has  no  validity,  as  it  is  a  mere  nudum  pactum.  In  order 
to  be  operative  it  must  be  predicated  on  a  new  consideration." 
An  admission  as  follows,  "  I  do  not  wish  to  avail  myself  of  the 
statute  of  limitations,"  was  held  insufficient.3  Usually,  perhaps, 
where  there  is  a  promise  not  to  plead  the  statute,  there  will  be 
found  in  the  context  something  further  which  will  amount  to  an 
acknowledgment  of  indebtedness  from  which  a  promise  to  pay 
may  be  implied ;  but  in  the  absence  of  such  context  it  seems  on 
the  authority  of  the  cases  cited,  and  upon  a  strict  application  of 
the  present  theory  as  to  the  principles  of  the  doctrine  of  acknowl- 
edgment, that  a  promise  not  to  take  advantage  of  the  statute  will 
have  no  efficacy  in  itself  as  an  acknowledgment  of  a  debt.  Such 
a  promise,  however,  where  it  is  supported  by  a  consideration,  and 
is  not  a  mere  nudum  pactum,  may  amount  to  an  agreement,  for 
the  breach  of  which  damages  may  be  recovered.4     And  it  must 

561,  referred  to  in  the  text.  Lord  Denman  said'  "  When  the  debtor  says  before 
the  six  years  have  passed,  which  seems  to  me  an  important  circumstance,  '  I 
will  waive  the  statute,'  it  may  well  be  supposed  that  the  creditor  on  his  part 
has  forborne  to  sue,  relying  upon  this  undertaking  as  preserving  his  right  of 
action,  if  it  should  be  wanted."  Patteson.  J.,  said:  "  The  defendant  admits 
something  to  be  due,  though  he  does  not  agree  with  the  plaintiff  as  to  the 
amount;  but  he  says,  '  I  will  not  avail  myself  of  the  statute,  and  will  put  it  out 
of  my  power  to  do  so.'  That,  if  taken  alone,  makes  a  promise.  The  expres- 
sions which  follow  do  not  qualify  that  promise." 

1  Burton  v.  Stevens,  24  Vt.  131. 

'  Stockett  v.  Sasscer,  8  Md.  374;  Steele  v.  Jennings,  1  McMull.  (S.  C.)  297; 
Brown  v.  Edes,  37  Me.  318.  In  Warren  v.  Walker,  23  Me.  453,  the  defendant 
in  writing  agreed  to  "  waive  all  defense  which  a  party  might  otherwise  make 
under  the  statute  of  limitations,"  and  it  was  held  not  sufficient  to  prevent  him 
from  setting  up  the  statute;  and  a  similar  doctrine  was  held  in  the  case  of 
Brown  v.  Edes,  supra. 

3  Rackham  v.  Marriott,  2  H.  &  N.  196. 

4  East  India  Co.  v.  Paul,  7  M.  P.  C.  C.  85.  In  this  case  it  is  distinctly  laid 
down  by  Lord  Campbell  that  there  might  be  an  agreement  that,  in  considera- 
tion of  an  inquiry  into  the  merits  of  a.  disputed  claim,  no  advantage  should  be 

(a)  An    agreement   not    to  plead  the  derson,  121   N.  C.   244;   11   Harvard  L. 

statute   of    limitations,    if     upon    good  Rev.  4/7;  35  Am,   L.   Reg.  (N.  S.)  593; 

consideration,  is  valid,  and  fnrbearance  supra,  ^  7.  41,  n.     If  the  creditor  does 

lo    sue     is    such    good    consideration,  not  forbear,  as  he  agreed   to  do,  he  is 

Wells,    Fargo    &   (Jo.   v.   En  right,    127  precluded  from  relying  on  such  waiver 

'    il.   bbo.     See    Kellogg   v.    Dickinson,  of    the   statute    by    the    other    party. 

1  17     Mass.    432;      Davis    v.     Teachout  Bridges  v.  Stephens,   132  Mo.  524. 
(Mich.),   85    N.  W.  475;  Cecil   v.    Hen- 


J  77.]  ACKNOWLEDGMENTS.  209 

be  borne  in  mind  that  if  the  promise  not  to  take  advantage  of  the 
statute  be  made  within  six  years,  and  while  the  debt  is  still 
recoverable,  the  forbearance  to  sue  will  be  itself  a  sufficient  con- 
sideration. It  may,  however,  be  argued  that  any  such  promise 
must  be  disregarded  as  frustrating  the  policy  of  the  statutes,  and 
as  being  contrary  to  the  rule  that  prescription  cannot  be  re- 
nounced in  advance. 

A  promise  not  to  take  advantage  of  the  statute  may  seem  to 
amount  to  a  promise  to  pay  the  debt  in  question ;  and  so  it 
appears  to  have  been  held  in  England,1  where  the  promise  was, 
"  As  you  have  mentioned  the  limitations  act,  I  answer  at  once 
that  I  am  ready  to  put  it  out  of  my  power  to  take  advantage  of 
that  act,  and  will  immediately  give  you  my  note  for  whatever 
amount  is  due  you.  To  pay  you  now,  or  within  the  year,  I  am 
utterly  unable."  Yet  a  promise  not  to  plead  the  statute  in  an 
action  is  not  inconsistent  with  an  intention  to  defend  the  action 
upon  its  merits;  and  a  promise  in  the  following  terms,  "  I  hereby 
debar  myself  of  all  future  plea  of  the  statute,"  was  held  not 
sufficient.2 

SEC.  77.  Conditional  Acknowledgment.  —  If  a  debtor  annexes 
any  qualification  or  condition  to  his  acknowledgment  or  promise, 
it  will  not  be  operative  to  remove  the  statutory  bar  without  proof 
of   its   performance ; 3  (#)  and   a   contrary  rule  would   nullify  the 

taken  of  the  statute  of  limitations  in  respect  of  time  employed  in  the  inquiry, 
/rind  that  an  action  might  be  brought  for  breach  of  such  agreement. 

1  Gardner  v.  M'Mahon,  3  Q.  B.  561. 

5  Waters  v.  Earl  of  Thanet,  2  Q.  B.  757. 

3  In  Wetzell  v.  Bussard,  11  Wheat.  (U.  S.)  309,  Marshall,  C.  J.,  in  delivering 
the  opinion  of  the  court,  said:  "  We  think,  upon  the  principles  expressed  by 
the  court  in  ihe  case  of  Clementson  v.  Williams,  8  Cranch  (U.  S.  C.  C.)  72,  that 

(a)  There  must  be  an  express  promise  Co.,  71  L.  T.  249;  Thomas  v.  Carey,  26 

to    pay    the    debt,    an    unqualified    ac-  Col,  485;   Bean  v.   Wheatl?y,    13  App. 

knovvledgment  thereof,  or  aconditional  D.  C.  473;  0"Riley   v.    Finegan    (Kan. 

promise,    the   condition   of   which   has  App.),   58  Pac.  2S1;  Ennis  v.   Pullman 

been     performed.     Weston     v.     Hodg-  Palace  Car  Co..  165   111.   161;   Wiley  v. 

kins,  136   Mass.    326;  Custy   v.   Dolan,  Brown,  18  R.   I.  615;   Keenan  v.  Kee- 

159   id.    245;   Boynton  v.   Moulton,   id.  nan,  20  R.  I.  105;  Manchester  v.  Braed- 

248;  Gillingham  v.   Brown  (Mass.),  60  ner,  107  N.  Y.  346;   Davis  v.  Noyes,  61 

N.    E.    122.     See    Krebs    v.    Olmstead,  Hun,  87;   Heaton  v.  Leonard,  69  Hun, 

137    Mass.    504;    Bullion   &    Exchange  423;  Shaw  v.  Lambert,  43  N.  Y.  S.  470, 

Bank    v.    Hegler,    93    Fed.    Rep.    890;  Conn.  Trust  Co.  v.  Wead,  69  N.  Y.  S. 

Mowbray    v.    Appleby.    80    L.    T.   805;  518;   Cooper  v.  Jones  (N.  C),  38  S.  E. 

MeyerhoS  v.  Froehlich,  4  C.  P.  D.  63;  28;   Beeler  v.  Clarke  (go  Md.),  78  Am. 

hi  re  McHenry,  71  L.  T.  146,  and  [1894]  St.  Rep.  439;  Wells  v.  Hargrave  (Mo.), 

3  Ch.  290;  Nichols  v.   Regent's  Canal  38  Cent.  L.  J.  10,  and  n. 
[stats,  of  lim.  —  14I 


2IO 


STATUTES    OF    LIMITATION. 


[CHAP.   VII. 


principle  upon  which  the  doctrine  relating  to  acknowledgments 
rests.  It  is  not  the  acknowledgment  of  itself  which  revives  the 
debt,  but  the  promise  which  the  law  raises  from  the  acknowl- 
edgment; and   if  that   is   conditional,  it    follows,  as   a   matter  of 

an  acknowledgment  which  will  revive  the  original  cause  of  action  must  be 
unqualified  and  unconditional,  it  must  show  positively  that  the  debt  is  due  in 
whole  or  in  part.  If  it  be  connected  with  circumstances  which  in  any  manner 
affect  the  claim,  or  if  it  be  conditional,  it  may  amount  to  a  new  assumpsit,  for 
which  the  old  debt  is  a  sufficient  consideration;  or  if  it  be  construed  to  revive 
the  original  debt,  that  revival  is  conditional,  and  the  performance  of  ihe  con- 
dition, or  a  readiness  to  perform  it,  must  be  shown.  In  the  case  at  bar,  the 
defendant  said  to  one  witness  that  if  the  plaintiff  had  come  forward  and  settled 
certain  claims  the  defendant  had  against  him,  he  would  have  given  him  his 
powder;  and  to  another  he  said,  '  he  should  be  ready  to  deliver  the  powder 
whenever  the  plaintiff  settled  a  suit  which  Doctor  Ewell  had  brought  against 
defendant  in  the  court  of  Alexandria,  on  account  of  a  patent-right  and  machine 
sold  to  him  by  the  plaintiff.'  These  declarations  do  not  amount  to  an  unqualified 
and  unconditional  acknowledgment  that  the  original  debt  was  justly  demand- 
able.  They  assert  a  counter-claim  on  the  part  of  the  defendant,  which  he  was 
determined  to  oppose  to  that  of  the  plaintiff.  He  did  not  mean  to  give  validity 
to  the  plaintiff's  claim,  but  on  condition  that  his  own  should  be  satisfied.  These 
declarations,  therefore,  cannot  be  construed  into  a  revival  of  the  original  cause 
of  action,  unless  that  be  done  on  which  the  revival  was  made  to  depend.     It 


The  rule  recognized  in  England  and 
Massachusetts  is  that  to  take  a  case 
out  of  the  statute  of  limitations,  "  either 
there  must  be  an  acknowledgment  of 
the  debt,  from  which  a  promise  to  pay  is 
to  be  implied;  or  secondly,  there  must 
be  an  unconditional  promise  to  pay 
the  debt;  or  thirdly,  there  must  be  a 
conditional  promise  to  pay  the  debt; 
and  evidence  that  the  promise  has 
been  performed."  Mitchell's  Claim, 
L.  R.  6Ch.  822,  828;  Custy  v.  Dolan,  159 
Mass.  245 ;  Boynton  v.  Moulton,  id.  248. 

In  the  recent  case  of  Rodgers  v. 
Byers,  127  Cal.  528,  the  court  refers  to 
these  rules  as  settled  in  that  State: 
•'  (1)  That  when  the  statute  of  limita- 
tions has  barred  the  remedy  upon  the 
original  obligation,  and  an  acknowl- 
edgment or  a  promise  made  after  such 
lime  is  relied  upon,  the  action  is  not 
upon  the  original  obligation,  but  is 
upon  the  new  acknowledgment,  and 
the  implied  promise  raised  by  the  law, 
or  is  upon  the  new  express  promise. 
See  McCormick  v.  Brown,  36  Cal.  180, 
<>5  Am  Dec.  170;  Lambert  v.  Schmalz, 
118  Ca!.  33.  (21  II  the  acknowledg- 
ment <  r  ili  ■  promise  !>'•  made  while  the 
origin  tl   obligation   is  legally  enforce- 


able, and.  if  no  conditions  be  attached 
to  the  promise,  then,  though  brought 
after  the  statute  of  limitations  other- 
wise would  have  barred  the  remedy 
against  the  original  obligation,  the 
action  is  still  upon  the  original  obliga- 
tion, which  becomes  '  a  continuing 
contract  '  under  §  360  of  the  Code  of 
Civil  Procedure,  because  the  bar  of  the 
statute  has  been  lifted  and  removed. 
See  Chaffee  v.  Browne,  109  Cal.  211  ; 
So.  Pac.  Co.  v.  Prosser,  122  Cal  413. 
(3)  But,  upon  the  other  hand,  in  the 
case  of  a  new  promise,  made  while  the 
original  obligation  is  legally  enforce- 
able, if  that  promise  be  not  a  general 
promise  to  pay  the  obligation  accord- 
ing to  its  tenor  and  terms,  but  is  a 
promise  coupled  with  any  condition, 
and  an  action  is  brought  after  the 
statute  of  limitations  would  have 
barred  the  remedy  upon  the  original 
obligation,  the  action  of  plaintiff  is 
then  upon  the  substituted  conditional 
promise,  and  not  upon  Ihe  original 
obligation.  Such  substituted  con- 
ditional promise  must  be  pleaded,  the 
breach  of  it  averred,  and  the  recovery 
had  after  such  showing.  See  Curtis 
7'.  Sacramento,  70  Cal.  412." 


§  77-]  ACKNOWLEDGMENTS.  211 

course,  that  the  debt  can  only  be  revived  subject  to  such  con- 
ditions. The  debtor,  after  the  statute  has  run,  is  master  of  the 
situation.  If  the  creditor  expects  to  recover  any  portion  of  the 
debt,  he   must  take   it  upon  such   terms  as  the  debtor  sees  fit  to 

may  be  considered  as  a  new  promise,  for  which  the  old  debt  is  a  sufficient  con- 
sideration, and  the  plaintiff  ought  to  prove  a  performance,  or  a  readiness  to  per- 
form, the  condition  on  which  the  promise  was  made."  In  Bell  v.  Morrison,  r 
Pet.  (U.  S.)  351,  where  Wetzell  v.  Bussard  is  declared  by  Story,  J.,  to  be  "  the 
only  exposition  of  the  statute  which  is  consistent  with  its  true  object  and  import." 
In  Seaward  v.  Lord,  I  Me.  163,  where  the  maker  of  a  promissory  note  denied 
his  signature,  declaring  the  note  to  be  a  forgery,  but  said  that  if  it  could  be 
proved  that  he  signed  the  note  he  would  pay  it,  and  it  was  proved  at  the  trial 
that  he  did  sign  it,  it  was  held  sufficient  to  take  the  case  out  of  the  statute  of 
limitations.  So  in  Stanton  v.  Stanton,  1  N.  H.  425,  the  defendant  was  sued 
upcn  a  note  of  hand,  and  pleaded  the  statute  of  limitations.  It  was  proved  that 
he  made  the  note,  and  that  the  same  had  been  presented  to  him  within  six 
years,  when  he  said,  "  that  he  did  not  recollect  giving  the  note;  but  if  he  did, 
he  would  pay  it,  its  being  outlawed  should  make  no  odds;  "  this  was  held  suffi- 
cient to  take  the  case  out  of  the  statute.  In  Tanner  v.  Smart,  6  B.  &  C.  603,  in 
assumpsit  brought  to  recover  a  sum  of  money,  the  defendant  pleaded  the 
statute  of  limitations,  and  upon  that  issue  was  joined.  At  the  trial  the  plaintiff 
proved  the  following  acknowledgment  by  the  defendant  within  six  years:  "  I 
cannot  pay  the  debt  at  present,  but  I  will  pay  it  as  soon  as  I  can."  It  was  held 
that  this  was  not  sufficient  to  entitle  the  plaintiff  to  a  verdict,  no  proof  being 
given  of  the  defendant's  ability  to  pay.  In  Scales  v.  Jacobs,  3  Bing.  638,  to  a 
plea  of  the  statute  the  plaintiff  replied  a  promise  within  six  years,  and  proved 
that  three  years  after  the  original  cause  of  action  accrued,  and  within  six  years 
of  the  commencement  of  the  action,  the  defendant,  being  called  on  for  payment 
of  the  plaintiff's  demand,  said,  "  it  was  not  in  his  power  to  pay,  but  as  soon  as 
it  was  he  would."  Held,  that  the  plaintiff  must  also  prove  the  defendant's 
ability  to  pay.  In  Ayton  v.  Bolt,  4  Bing.  105,  in  an  action  on  an  attorney's  bill 
to  which  the  defendant  pleaded  the  statute,  the  plaintiff  proved  that  the  defend- 
ant, having  been  applied  to  for  payment  within  six  years  before  the  commence- 
ment of  the  suit,  said,  "  he  should  be  happy  to  pay  the  debt  if  he  could,"  and 
added  that  if  the  plaintff  could  recover  for  him  a  debt  due  to  him  from  one 
Gurney,  the  plaintiff  might  therewith  satisfy  his  own  debt.  Held,  that  the 
plaintiff  must  show  the  defendant's  ability  to  pay.  But  in  the  case  of  Thomp- 
son v.  Osborne,  2  Stark.  98,  it  was  held  by  Lord  Ellenborough,  at  nisi pr his  (in 
1817),  that  a  promise  by  a  defendant  to  pay  a  debt  by  instalments  when  he  is 
able,  is  sufficient  to  take  the  case  out  of  the  statute  of  limitations,  without  proof 
of  time  being  given,  or  of  the  ability  of  the  party.  Upon  the  general  question, 
and  to  the  effect  that  the  condition  must  be  performed  in  order  to  give  vitality 
to  the  acknowledgment  or  promise,  see  Pearson  v.  Harper,  11  La.  Ann.  184; 
Bates  v.  Bates,  33  Ala.  102;  Shaw  v.  Newell,  1  R.  I.  488;  Farmers'  Bank  v. 
Clarke,  4  Leigh  (Va.)  603;  Mullett  v.  Shrumph,  27  111.  107;  Mitchell  v.  Clay,  8 
Tex.  443.  In  Sweet  v.  Franklin,  7  R.  I.  355,  in  a  suit  by  an  administrator 
against  a  son  of  the  deceased  on  a  note  that  had  been  given  by  him  to  his 
father,  but  upon  which  the  statute  had  run,  evidence  was  admitted  showing  that 
he  had  promised  to  pay  the  note  if  a  settlement  of  his  father's  estate  should  be 


212  STATUTES   OF   LIMITATION.  [CHAP.   VII. 

dictate.1     Where  the  debtor  said,  "As  soon  as  I  have  the  money 

made  upon  his  mother  without  administration,  in  order  to  save  expenses.  The 
condition  was  not  performed,  and  the  court  held  that  the  acknowledgment  was 
inoperative.  In  Luna  v.  Edmiston,  5  Sneed  (Tenn.)  151,  the  defendant  told  the 
plaintiff,  to  whom  he  owed  a  debt  barred  by  the  statute.  "  If  you  will  buy  C.'s 
land,  I  will  pay  him  what  I  owe  you,  which  will  be  enough  to  pay  the  first 
instalment."  It  was  held  not  sufficient,  unless  the  condition  was  complied  with 
and  the  land  purchased. 

1  Hart  v.  Prendergast,  14  M.  &  W.  741,  where  Parke,  B.,  thus  expressed  the 
rule:  "An  unconditional  acknowledgment  is  good  to  prove  a  promise,  because 
you  would  infer  from  it  that  the  party  meant  to  pay  on  request.  But  if  he 
annexes  any  qualification  or  condition,  that  is  not  a  sufficient  acknowledgment, 
without  proof  of  the  performance  of  it."  See  Mattocks  v.  Chadwick,  71  Me. 
313.  In  Buckmaster  v.  Russell,  10  C.  B.  N.  S.  749,  the  defendant  had  written 
as  follows:  "  I  have  received  a  letter  from  Messrs.  P.  &  L.,  solicitors,  request- 
ing me  to  pay  you  an  account  of  £40  gs  6d.  I  have  no  wish  to  have  anything 
10  do  with  the  lawyers;  much  less  do  I  wish  to  deny  a  jusi  debt.  I  cannot,  how- 
ever, get  rid  of  the  notion  that  my  account  with  you  was  settled  in  1851;  but  as 
you  declare  it  was  not  settled,  I  am  willing  to  pay  you  £10  per  annum  until  it 
is  liquidated.  Should  the  proposal  meet  with  your  approbation  we  can  make 
arrangements  accordingly."  This  was  held  insufficient,  Willes,  J  ,  observing 
that  it  did  not  amount  to  a  promise  until  the  terms  the  defendant  proposed  were 
assented  to.  See  also  Cowley  v.  Furnell,  12  C.  B.  291;  Fearn  v.  Lewis,  6  Bing. 
349.  However,  in  Collis  v.  Stack,  1  H.  &  N.  605,  an  acknowledgment  in  the 
terms  following  was  held  good  without  any  proof  of  assent:  "  I  shall  repeat 
my  assurance  to  you  of  the  certainty  of  your  being  repaid  your  generous  loan. 
Let  matters  remain  as  they  are  for  a  short  time  longer  and  all  will  be  right. 
The  works  I  have  been  appointed  to,  but  they  are  not  yet  worked  with  the  full 
complement  of  labor;  this  term  will  decide  the  matter."  So  where  a  defend- 
ant, called  upon  by  a  creditor,  who  held  two  promissory  notes  against  him  more 
than  six  years  overdue,  for  a  statement  of  his  affairs,  made  out  an  account  in 
which  the  notes  were  inserted  as  a  debt  to  which  he  was  liable,  it  was  held  to 
be  a  sufficient  acknowledgment  by  the  debtor.  Holmes  v.  Mackrell,  3  C.  B. 
N.  S.  789.  If  the  acknowledgment  of  the  debt  is  coupled  with  terms  or  con- 
ditions of  any  sort,  no  recovery  can  be  had  without  proof  of  their  fulfilment, 
Cocks  v.  Weeks,  7  Hill  (N.  Y  )  45;  Farmers'  Bank  v.  Clark,  4  Leigh  (Va.)  603; 
Shaw  v.  Newell,  1  R.  I.  488;  because  as  the  debtor  may  admit  the  debt,  and 
yet  refuse  to  pay  it,  without  giving  any  reason  for  his  refusal,  Carruth  v.  Paige, 
22  Vt.  179,  he  must  necessarily  be  entitled  to  assume  an  intermediate  position, 
and  accord  a  portion  of  that  which  he  mif>ht  withhold  altogether.  Thus,  an  offer 
to  pay  a  fixed  sum  in  satisfaction  of  a  larger  one,  or  of  an  unliquidated  account, 
will  not  remove  the  bar  of  the  statute,  even  as  it  regards  the  sum  actually 
offered,  unless  the  offer  be  accepted  when  it  is  made,  or  within  a  reasonable 
time  afterwards;  because  the  acknowledgment  which  it  implies  cannot  be 
separated  from  the  condition  with  which  it  is  accompanied.  Bell  v.  Morrison, 
1  Pet.  (U.S.)  351;  Farley  v.  Kustenbader,  3  Penn.  St.  418;  M'Glensey  v.  Flem- 
ing, 4  I).  &  P..  (NT.  C.)  129;  Wolf  v.  Fleming,  1  Ired.  (N.  C.)  290;  Smith  v.  East- 
man,  3  Cash.  (Mass.)  355;  Mum  ford  v.  Freeman,  8  Met.  (Mass.)  432.  In  like 
manner,  if  a  promise  to  pay  a  debt  barred  by  the  statute,  in  goods,  or  the  notes 


§  yy.]  ACKNOWLEDGMENTS.  21 3 

I  will  remit;"  '  or,  "As  soon  as  the  money  can  be  realized  from 
the  assets  it  shall  be  paid  ;"  2  or,  "I  think  I  see  my  way  clear  to 
pay  you  the  $200  and  interest  I  owe  you.  I  am  in  hopes  another 
two  years  will  enable  me,  from  my  present  income,  to  clear  off 
all  pressing  debts.      Rest  assured   that   not  a   day  of   pecuniary 

or  bills  of  a  stranger,  has  any  legal  validity  which  may  be  doubted,  Earle  v. 
Oliver,  1  Exch.  71;  Reeves  v.  Hearne,  1  M.  &  W.  323,  it  cannot  be  binding 
without  proof  that  the  creditor  assented  to  it  at  the  time,  and  that  the  debtor 
subsequently  refused  to  perform  it.  Bush  v.  Barnard,  8  Johns.  (N.  Y.)  407; 
Wolf  v.  Fleming,  1  Ired.  (N.  C.)  290;  Taylor  v.  Stedman,  ir  id.  447;  M'Lellan 
v.  Albee,  17  Me.  184.  But  unless  the  qualification  or  condition  really  restricts 
or  limits  the  meaning  of  the  acknowledgment,  it  will  be  wholly  immaterial,  and 
may  be  disregarded  by  the  creditor.  Whitney  v.  Bigelow,  4  Pick.  (Mass.)  no; 
Watkins  v.  Stevens,  4  Barb.  168.  And  it  has  even  been  held  that  a  promise  to 
go  to  work  and  pay  when  able  requires  no  proof  of  ability.  First  Congregational 
Society  v.  Miller,  15  N.  H.  520;  Butterfield  v.  Jacobs,  id.  140;  Cummings  v. 
Gassett,  19  Vt.  308.  Bui  these  cases  are  opposed  by  the  general  course  of 
decision,  under  which  no  recovery  can  be  had  on  a  promise  to  pay  a  debt  barred 
by  the  statute,  when  able,  without  proof  that  the  means  of  the  debtor  are  such 
as  to  enable  him  to  make  the  payment.  Tompkins  v.  Brown,  1  Den.  (N.  Y.) 
247;  Laforge  v.  Jayne,  9  Penn.  St.  410;  Sherman  v.  Jacobs,  1  Barb.  (N.  Y.)  254. 
It  would  appear  that  the  creditor  will  be  entitled  to  recover  on  proof  of  the  ful- 
filment of  the  condition,  however  essentially  it  may  qualify  the  acknowledg- 
ment, and  that  a  promise  to  pay  the  debt,  if  proved,  may  be  binding,  though 
coupled  with  a  denial  that  it  is  due,  if  sufficient  proof  of  its  existence  can  be 
brought  to  salisfy  the  jury  impanelled  to  try  the  issue.  Dean  v.  Pitts,  10  Johns. 
(N.  Y.)  35:   Paddock  v.  Colby,  18  Vt.  485;   Hill  v.  Kendall,  25  id.  528. 

1  Sedgwick  v.  Girding,  55  Ga.  264.  In  Norton  v.  Shepard,  48  Conn.  98,  where 
a  debtor  whose  debt  was  barred  by  the  statute  of  limitations  said  to  his  creditor 
with  regard  to  it,  "  I  will  pay  it  as  soon  as  possible,"  it  was  held  to  be  a  suffi- 
cient acknowledgment  of  the  debt  to  take  it  out  of  the  statute.  "  The  Connecti- 
cut statutes  of  limitation,"  said  Loomis,  J.,  "  do  not  create  an  arbitrary  bar  to 
the  recovery  of  a  debt  independent  of  the  will  of  the  debtor.  If  they  did,  a  new 
promise  would  not  avail  the  creditor  unless  founded  on  some  new  considera- 
tion, and  in  such  case  the  action  would  have  to  be  brought  on  the  new  promise. 
But  the  courts  have  always  considered  them  mere  statutes  of  repose,  which 
suspend  the  remedy,  leaving  the  debt  uncancelled  and  still  binding  in  foro  con- 
scietitice."  See  Lord  v.  Shaler,  3  Conn.  131;  Bound  v.  Lathrop,  4  id.  336: 
Austin  v.  Bostwick,  9  id.  496;  Belknap  v.  Gleason,  n  id.  160;  Phelps  v.  William- 
son, 26  Vt.  230.  In  general,  any  language  of  the  debtor  to  the  creditor  clearly 
admitting  the  debt  and  showing  an  intention  to  pay  it  will  be  considered  an 
implied  promise  to  pay,  and  will  take  the  case  out  of  the  statute.  Wooters  v. 
King,  54  III.  343;  Gailer  v.  Grinnel,  2  Aik.  (Vt.)  34.9;  Phelps  v.  Stewart,  2  Vt. 
256.  An  acknowledgment  that  a  debt  was  once  justly  due  and  has  never  been 
paid  will  ordinarily  authorize  the  inference  of  a  promise  to  pay  it.  Sandford 
v.  Clark,  29  Conn.  460. 

'  Hanson  v.  Towle,  19  Kan.  273. 


214  STATUTES   OF   LIMITATION.  [CHAP.  VII. 

freedom  will  pass  over  my  head  without  your  hearing  from  me;"  ! 
or,  "  If  you  will  buy  C.'s  land  I  will  pay  him  the  amount  I  owe 
you;"  2  or,  "  I  will  pay  as  soon  as  I  can;"  3  or,  "  If  A.  will  say 
I  had  the  timber,  I  will  pay  for  it;"  or,  "  Prove  it  by  A.  and  I 
will  pay  for  it;"  4  or,  "I  should  be  happy  to  pay  it  if  I  could;"  B 
or,    "I    will    pay    you    when    able,"6    or    "when    of    sufficient 

1  Pierce  v.  Seymour,   52  Wis.  272. 

5  Luna  v.  Edmiston,  5  Sneed  (Term.)  159. 

3Tannei   v.  Smart,  6  B.  &  C.   602;   Tompkins  v.   Brown,  1  Den.  (N.  Y.)  247; 
Bidvvell  v.  Rogers,  10  Allen  (Mass.)  438. 

*  Robbins  v.  Otis,  1  Pick.  (Mass.)  368. 

5  Ayton  v.  Bolt,  4  Bing.  105. 
,  6  In  Tebo  v.  Robinson,  100  N.  Y.  27,  it  was  held  that  ability  to  pay,  wiihin  the 
meaning  of  a  promise  to  pay  a  debt  when  able,  cannot  be  fairly  implied  while 
the  debtor,  although  in  possession  of  properly  sufficient  to  pay  the  debt,  is 
plainly  insolvent,  or  where  payment,  if  enforced,  would  strip  him  of  his  means 
of  support;  nor  is  it  within  the  contemplation  of  the  parties  that  the  debtor  will 
pay  out  of  earnings  necessary  for  the  support  of  himself  or  his  family,  or  that 
he  will  pay  to  the  prejudice  of  other  creditors  whose  debts  are  absolute  and 
unconditional.  On  the  other  hand,  such  a  promise  does  not  imply  simply  an 
ability  to  pay  without  embarrassment,  or  even  without  crippling  the  debtor's 
resources  and  business.  Love  v.  Hough,  2  Phil.  (Penn.)  350.  In  Davies  v. 
Smith,  4  Esp.  36,  the  defendant,  on  being  applied  to  for  payment,  said:  "  I 
think  I  am  in  honor  bound  to  pay  the  money,  and  shall  do  it  when  I  am  able,'' 
and  this  was  held  not  sufficient.  See  Manning  v.  Wheeler,  13  N.  H.  486;  Wake- 
man  v.  Sherman,  9  N.  Y.  88;  and  contra,  see  Sennott  v.  Horner,  30  111.  429; 
Cummings  v.  Gassett,  19  Vt.  308.  If,  after  a  debtor  has  promised  to  pay 
"  when  able  "  it  is  shown  that  subsequent  to  such  promise  he  had  the  ability 
to  pay,  the  statutory  bar  is  removed,  although  at  the  time  when  suit  was 
brought,  the  ability  to  pay  did  not  exist.  Lange  v.  Caruthers,  70  Texas,  718. 
A  tort  cannot  be  revived  by  an  acknowledgment  or  promise.  Morris  v.  Lyon,  4 
Va.  331;  Vickers  v.  Stoneman,  73  Mich.  419.  In  Trask  v.  Weeks,  81  Me.  325,  it 
was  held  that  an  agreement  to  waive  any  and  all  objections  to  certain  amounts 
on  account  of  the  statute  and  renewing  the  promise  to  pay  any  balance  which 
should  be  against  the  debtor,  made  after  the  statute  had  tun,  was  not  sufficient 
to  estop  the  debtor  from  setting  up  the  statutory  bar  when  the  statutory  bar  has 
run.  Where  a  debtor,  on  being  presented  with  a  claim,  says,  "  I  will  pay  it  as 
soon  as  possible,"  this  is  a  sufficient  acknowledgment  to  take  the  debt  out  of 
the  statute.  Norton  v.  Shepard,  48  Conn.  142.  See  First  Congregational  Society 
7 .  Miller,  15  N.  H.  520,  where  the  defendant's  language  was,  "  that  he  had  not 
the  money,  but  would  pay  as  soon  as  he  could,"  which  was  held  not  to  be  a 
1  onditional  promise,  because  there  was  no  certain  event  to  which  the  words 
looked  forward,  and  it  was  held  as  a  sufficient  acknowledgment  to  take  the  case 
out  of  the  statute.  Hutterfield  v.  Jacobs,  id.  140;  Cummings  v.  Gassett,  19  Vt. 
-iluljy  v.  Champlin,  4  Johns.  (N.  Y.)  461;  De  Forest  v.  Hunt,  8  Conn.  179; 
P.rown  v.  Keach,  24  Conn.  73;  Blakeman  v.  Fonda,  41  id.  561;  Pierce  v.  Sey- 
mour, 52  Wis.  272;  Mattocks  v.  Chadwick,  71  Me.  313.  The  Connecticut  courts 
probably  give  more  effect  to  the  statute  than  those  of  any  other  State. 


§77-]  ACKNOWLEDGMENTS.  215 

ability, "  '  or  "  when  convenient, "  2  or  "as  soon  as  it  is  in  my  power 
to  do  so;"  3  or,  "I  should  be  happy  to  pay  if  I  could  ;"  4  or,  "  You 
shall  have  your  pay  if  I  live,  and  the  whaling  business  does  not 
fail;"  5  or,  "I  am  going  to  H.  in  the  course  of  a  week,  and  will 
help  you  to  £5  if  I  can,"  6  —  these  are  all  conditional  acknowl- 
edgments which  are  inoperative,  unless  it  is  shown  that  the  con- 
dition has  been  performed,  the  burden  of  establishing  which  is 
upon  the  plaintiff.7  An  offer  to  pay  a  debt  upon  which  the  stat- 
ute had  run,  in  "  Confederate  money,"  which  was  not  accepted 
by  the  plaintiff,  was  held  insufficient  to  take  the  debt  out  of  the 
statute.8 

'Jacobs  v.  Scales,  3  Bing.  648. 

2  Edmunds  v.  Dowries,  2  C.  &  M.  459. 

3  Haydon  v.  Williams,  4  M.  &  P.  811.  In  Sedgwick  v.  Gerding,  55  Ga.  264, 
where  is  appeared  that  on  Dec.  31.  1872,  a  suit  was  commenced  on  an  open 
account  contracted  in  September  and  October,  1868,  and  to  avoid  the  statute, 
and  as  an  independent  ground  of  recovery,  a  letter  from  the  defendant,  written 
May  21,  1868,  was  relied  upon,  which  was  as  follows:  "  In  reply  to  your  favor 
of  the  22d  instant  you  will  please  to  withdraw  your  draft  of  $314.37  upon  me, 
as  I  cannot  pay  for  the  present.  As  soon  as  I  have  the  money  I  shall  remit,"  it 
was  held  too  indefinite  to  avoid  the  statutory  bar,  or  as  an  independent  ground 
of  action.  In  Betton  v.  Cutts,  n  N.  H.  170,  the  debtor  admitted  that  the  claim 
was  just,  and  said  he  would  pay  it  if  he  ever  received  anything  on  a  certain 
■claim,  and  after  his  decease  his  administrator  received  a  dividend  upon  that 
■claim,  it  was  held  that  the  condition  was  fulfilled  and  the  debt  revived. 

4  Ayton  v.  Bolt,  4  Bing.  105. 

5  Mumford  v.  Freeman,  8  Met.  (Mass.)  432. 

6  Gould  v.  Shirley,  2  M.  &  P.  581. 

1  Manning  v.  Wheeler,  13  N.  H.  486;  Davies  v.  Smilh,  supra;  Carroll  v. 
Forsyth,  69  111.  127.  In  Walker  v.  Cruikshank,  23  La.  Ann.  252,  a  proposal  by 
an  executor  to  pay  a  note  against  the  estate,  "  if  the  holder  will  throw  off  the 
interest,"  was  held  sufficient  to  suspend  the  statute,  although  the  offer  was  not 
accepted.  But  in  McDonald  v.  Underhill,  10  Bush  (Ky.)  584,  a  similar  acknowl- 
edgment or  offer  was  held  sufficient  only  as  to  the  principal,  and  did  not  extend  to 
the  interest  due  theieon.  Where  the  defendant  had  written  to  one  of  the  plain- 
tiffs as  follows:  "  The  old  account  between  us,  which  has  been  standing  over  so 
long,  has  not  escaped  our  memory,  and  as  soon  as  we  can  get  our  affairs  arranged 
we  will  see  you  are  paid;  perhaps,  in  the  mean  time,  you  will  let  your  clerk  send 
me  an  account  of  how  it  stands,"  it  was  claimed  by  the  defendant  that  the 
letter  did  not  take  the  case  out  of  the  statute,  the  time  limited  by  which  would 
otherwise  have  run,  it  was  held,  on  an  appeal  by  a  majority  in  the  Exchequer 
Chamber,  Coleridge,  C.  J.,  dissenting,  that  the  promise  in  the  letter  was 
sufficient.  Chasemore  v.  Turner,  L.  R.  10  Q.  B.  500.  See  Smith  v.  Thorne, 
18  Q.  B.  143;  Sid  well  v.  Mason,  2  H.  &  N.  306;  Collis  v.  Stack,  1  id.  605. 

eSimoiUon  v.  Clark,  65  N.  C.  525,  6  Am.  Rep.  752;  McCranie  v.  Murrell,  22 
La.  Ann.  477. 


2l6  STATUTES   OF    LIMITATION.  [CHAP.  VII. 

Where  there  was  in  effect  a  promise  to  pay  on  alternative  con- 
ditions, forbearance  to  sue  was  said  to  be  sufficient  evidence 
of  the  acceptance  of  one  condition  by  the  plaintiff.1  And  a 
promise  to  pay  in  a  particular  manner  will  not  revive  the  debt 
generally.2 

When  there  was  an  agreement  signed  by  certain  persons  to  refer 
accounts  between  them  to  arbitration,  and  the  arbitrators  were 
empowered  to  ascertain  by  their  award  what  was  due  and  pay- 
able, and  to  order  the  same  to  be  paid  at  such  time  and  in  such 
proportion  as  the  arbitrators  should  think  fit,  it  was  held,  on  the 
arbitration  proving  abortive,  that  the  agreement  only  amounted 
to  a  conditional  promise  to  pay  the  amount  found  due  by  arbitra- 
tion, and  that  as  the  condition  was  unfulfilled  there  was  no 
effectual  acknowledgment.3 

As  an  acknowledgment  of  a  debt  simply  avoids  the  statute  by 
the  implication  it  affords  of  a  new  promise,  an  acknowledgment, 
though  otherwise  sufficient,  if  made  obviously  on  some  other 
account,  may  be  held  insufficient. 4  Thus,  in  one  case  it  was  so 
held  where  the  acknowledgment  consisted  in  the  fact  that  a  surety 
had  written  to  authorize  the  creditor  to  receive  a  dividend  upon 
his  debt  from  the  principal  debtor.5 

Sec.  78.  Hope  to  pay.  —  Where  an  acknowledgment  has  been 
given,  followed  by  an  expression  of  "  hope  "  that  the  debtor  will 
satisfy  his  debt,  it  has  often  been  doubted  how  far  that  expres- 
sion has  cut  down  the  implied  promise.6  On  this  point  Bram- 
well,  B.,  said:  "It  seems  to  me  a  mistake  has  been  made  in 
several  cases  with  respect  to  the  expression  of  hope  in  holding 
that,  because  along  with  an  unconditional  acknowledgment  of  a 
debt  a  man  expresses  a  hope  to  be  able  to  do  that  which  he  is 
legally  obliged  to  do,  such  an  acknowledgment  is  not  sufficient." 

Where  the  defendant  thus  wrote  to  his  creditor,  "Your  letter 

1  Wilby  v.  Elgee,  L.  R.  10  C.  P.  497,  50L 

5  Cawley  v.  Furnell,  12  C.  B.  291. 

3  Hales  v.  Stevenson,  9  Jur.  N.  S.  300. 

*Cripps  v.  Davis,  12  M.  &  W.  159. 

1  Cockrill  v.  Sparkes,  1   H.  &  C.  699. 

*  Hart  -.  Prendergast,  14  M.  &  W.  741;  Rackham  7>.  Marriott,  2  H.  &  N.  196. 
In  Hancock  v.  Hliss,  7  Wend.  (N.  Y.)  267,  the  debtor  admitted  the  debt,  but 
said  "  it  was  not  in  his  power  to  pay  it  at  the  time,  but  he  hoped  lo  see  the 
plaintiff  and  do  something  about  it;  "  and  it  was  held  not  a  sufficient  acknowl- 
edgment lo  raise  a  promise  by  implication  to  take  the  debt  out  of  the  statute. 


§  yS.]  ACKNOWLEDGMENTS.  21  ? 

has  reached  me  at  last,  after  having  been  half  over  England.  It 
is  quite  true  that  I  have  not  sent  you  any  money  for  years,  but  I 
really  have  none  of  my  own.  We  just  manage  to  exist  on  my 
wife's,  or  at  least  what  is  left  of  hers.  We  have  hard  work  to  get 
on,  but  I  will  try  to  pay  you  a  little  at  a  time  if  you  will  let  me. 
I  am  sure  that  I  am  anxious  to  get  out  of  your  debt.  I  will 
endeavor  to  send  you  a  little  next  week;  "  '  this  was  held  by  a 
majority  of  the  court  to  be  a  sufficient  acknowledgment.2 

And  where  the  defendant  wrote  as  follows:3  "I  think  I  see 
my  way  clear  to  pay  you  the  $200  and  interest  I  owe  you.  I  am 
in  hopes  another  two  years  will  enable  me  from  my  present 
income  to  clear  off  all  pressing  debts.  Rest  assured  that  not  a 
day  of  pecuniary  freedom  will  pass  over  my  head  without  you 
hearing  from  me,"  it  was  held  insufficient  to  take  the  debt  out 
of  the  statute. 

Under  this  head  may  properly  be  embraced  offers  of  compro- 
mise. If  a  debtor  in  whose  favor  the  statute  has  run  offers  to 
compromise  the  claim  by  paying  a  smaller  sum  than  is  due,  or  to 
pay  it  in  a  certain  kind  of  property,  the  offer  does  not  operate  as 
an  acknowledgment  of  the  debt,  so  as  to  remove  the  statutory 
bar,  even  to  the  extent  of  the  sum  offered,  unless  the  offer  is 
accepted  when  made;  and  if  accepted,  only  relieves  the  operation 
of  the  statute  to  the  extent  of  the  offer.4  Where,  after  the  stat- 
ute had  run  the  debtor  was  reminded  of  the  note  by  the  plaintiff, 
and  of  the  fact  that  it  had  not  been  paid,  and  he  said,  "  I  will 
give  you  a  ton  of  coal  for  it,"  which  offer  was  not  accepted,  it 
was  held  that  it  did  not  relieve  the  debt  from  the  operation  of 
the  statute.  "The  offer  of  the  defendant,"  said  Seymour,  J., 
"  to  give  a  ton  of  coal  for  the  note  was  not  accepted.     It  was  a 

1  Sid  well  v.  Mason,  2  H.  &  N.  310. 

8  Lee  v.  Wilmot,  L.  R.  1  Ex.  364. 

3  Pierce  v.  Seymour,  52  Wis.  272. 

*Mumford  v.  Freeman,  8  Met.  (Mass.)  432;  Bell  v.  Morrison,  1  Pet.  (U.  S.) 
351;  Smith  v.  Eastman,  3  Cush.  (Mass.)  355;  Pearson  v.  Harper,  11  La.  Ann. 
184;  Bates  v.  Bates,  33  Ala.  102;  Lucas  v.  Thorington,  5  id.  504;  Pearson  v. 
Darrington,  32  id.  227;  Parsons  v.  Northern,  etc.,  Iron  Co.,  38  III.  430;  Slack  v. 
Norwich,  32  Vt.  818;  Neil  v.  Abbott,  2  Cranch(C.  C.)  193;  McGlensey  v.  Flem- 
ing, 4  D.  &  B.  (N.  C.)  L.  129;  Ash  v.  Hayman,  2  Cranch  (C.  C.)  452;  Bank  of 
Columbia  v.  Sweeny,  3  id.  293;  Creuse  v.  Defiganiere,  10  Bosw.  (N.  Y.)  122; 
Pool  v.  Relfe,  23  Ala.  701;  Morehead  v.  Gallinger,  9  Iowa,  519;  Hicks  v. 
Thomas,  Dudley  (Ga.)  218. 


2l8  STATUTES   OF   LIMITATION.  [CHAP.   VII. 

mere  offer  of  compromise,  and  clearly  no  acknowledgment  to 
take  the  case  out  of  the  statute."  1 

Where  the  maker  of  a  note  agreed  with  the  holder  to  pay  him 
a  certain  proportion  of  the  amount  due  in  full  discharge  of  the 
note,  and  afterwards  made  and  signed  a  note  for  the  amount  so 
promised,  and  offered  it  to  the  holder  in  payment  of  the  first 
note,  and  the  holder  refused  to  receive  it,  it  was  held  that  that 
was  not  such  an  acknowledgment  as  took  the  first  note  out  of  the 
statute.2  And  where  a  few  days  before  the  statute  had  run  upon 
a  claim,  the  plaintiff  sent  to  the  defendant  a  proposition  that  if 
he  would  make  her  a  wagon  worth  $75  she  would  give  up  the 
note,  and  the  defendant  said  that  he  could  not  make  her  such  a 
wagon  then,  but  would  do  so  next  year,  and  the  plaintiff  made  no 
reply  to  the  defendant's  proposition  to  make  the  wagon  the  next 
year,  the  court  held  that  the  promise  was  not  binding,  and  did 
not  suspend  the  operation  of  the  statute  upon  the  note.3 

A  distinction  is  observed  between  the  construction  put  upon  a 
letter  written  or  an  acknowledgment  made  a  short  time  after  the 
debt  has  been  contracted,  and  one  written  after  the  debt  is 
barred.  In  the  latter  case,  effect  is  properly  given  to  anything 
which  savors  of  a  condition ;  but  where  a  person,  being  then  a 

1  Currier  v.  Lockwood,  40  Conn.  349.  Where,  in  a  Missouri  case  the  defend- 
ant wrote  the  plaintiff  that  he  had  a  certain  sum  of  money,  "  and  I  propose 
giving  it  all  up  to  my  creditors,  —  that  is,  the  creditors  of  Lea  &  Rubey,  —  to 
be  equally  distributed  between  them,  provided  they  will  entirely  release  me 
from  further  obligation,"  the  plaintiff  not  accepting  the  offer,  it  was  held  that 
it  did  not  take  the  debt  out  of  the  statute.  "  Instead  of  an  admission,"  said 
Wagner,  J.,  "  it  was  an  offer  of  compromise,  and  a  promise  to  pay  part  for  the 
whole,  and  as  the  offer  was  not  aicepted  the  liability  did  not  accrue."  Cham- 
bers v.  Ruby,  47  Mo.  99,  4  Am.  Rep.  318.  Where  the  defendant  offered  to  pay 
the  note  in  suit  in  Confederate  notes  or  in  bank  bills,  but  the  plaintiff  refused 
either,  and  demanded  gold,  the  court  held  that  this  was  not  a  sufficient  acknowl- 
edgment to  take  the  debt  out  of  the  statute.  "  The  act  of  the  defendant's  testa- 
tor," said  Dick,  J.,  "  was  a  mere  offer  to  pay  in  the  currency  then  in  circulation, 
and  no  intention  was  in  any  way  shown  of  assuming  or  renewing  the  obliga- 
tion. We  think  the  proper  inference  to  be  drawn  from  the  evidence  is,  that  the 
defendant's  testator  was  willing  to  pay  the  debt  in  the  currency  of  the  country, 
which  was  then  abundant;  and  as  that  was  refused,  his  purpose  was  to  rely 
upon  the  statute  of  limitations."     Simonton  v.  Clark,  65  N.  C.  525. 

,;  Smith  v.  Eastman,  3  Cush.  (Mass.)  355.  In  Price  v.  Price,  34  Iowa,  401,  it 
was  held  that  a  promise  to  pay  a  debt  already  barred  by  the  statute  which  sub- 
stitutes a  different  mode  of  payment,  or  that  is  not  founded  on  a  new  considera- 
tion, is  not  sufficient  to  remove  the  statute  bar. 

3  Batchelder  v.  Hatchelder,  48  N.  II.  23. 


§  79-]  ACKNOWLEDGMENTS.  219 

debtor  who  has  no  right  to  time,  writes  a  letter  asking  for  time, 
the  reasonable  construction  is,  that  it  is  no  condition,  and  that 
the  writer  has  no  intention  of  imposing  a  condition.1 

Sec.  79.  By  and  to  whom  must  be  made.  —  It  was  formerly 
held  in  England,2  as  well  as  in  the  courts  of  this  country,3  that  an 
acknowledgment  of  a  debt  to  a  stranger  was  as  effectual  to  remove 
the  statute  bar  as  one  made  to  the  creditor  himself.  But  under 
the  modern  rule,  that  an  acknowledgment  must  be  such  as  fairly 
raises  an  implied  promise  to  pay  the  debt,  it  follows  as  a  matter 
of  course  that  the  acknowledgment  or  promise  must  not  only  be 
made  by  a  person  legally  competent  to   contract,4  (a)  but   must 

1  Where,  before  the  statute  had  run  upon  the  claim,  the  defendant  wrote  the 
plaintiffs  as  follows-  "  In  reply  to  your  statement  of  account  received  I  am 
ashamed  the  account  has  stood  so  long;  I  must  beg  to  trespass  on  your  kind- 
ness a  short  time  longer,  till  a  turn  in  trade  takes  place,  as  for  some  time 
things  have  been  very  flat;  "  this  was  held  such  an  unconditional  acknowledg- 
ment of  the  debt  as  to  sustain  an  implied  promise  to  pay  the  debt,  and  rebut 
the  statutory  bar.  Cornforth  v.  Smithard,  5  H.  &  N.  13.  See  Godwin  v.  Culley, 
4  H.  &  N.  373;  Sidwell  v.  Mason,  2  id.  306;  Eicke  v.  Nokes,  1  Moo.  &  R.  359; 
Evans  v.  Jones,  9  Exch.  282. 

2  Peters  v.  Brown,  4  Esp.  46;  Halliday  v.  Ward,  3  Camp.  32;  Clark  v.  Houg- 
ham,  2  B.  &  C.  149;  Mountslephen  v.  Brooke,  3  B.  &  Aid.  141;  Yea  v.  Fouraker, 
2  Burr.  1099. 

3  Newkirk  v.  Campbell,  5  Harr.  (Del.)  380;  St.  John  v.  Garrow,  4  Port.  (Ala.) 
223;  Oliver  v.  Gray,  1  H.  v.  G.  (Md.)  204;  Whitney  v.  Bigelow,  4  Pick.  (Mass.) 
no;   Minkler  v.  Minkler,  16  Vt.  193. 

4  Neither  an  acknowledgment  or  promise,  made  by  an  executive  officer  of  the 
government,  is  binding  upon  the  latter,  unless  by  some  act  of  Congress  they 
have  express  or  implied  authority  to  that  end.  Leonard  v.  U.  S.,  18  Ct.  of  CI. 
382.  Hannum's  Appeal,  9  Penn.  St.  471;  Ward  v.  Hunter,  6  Taunt.  210;  Tan- 
ner v.  Smart,  6  B.  &  C.  603;  Pulnam  v.  Foster,  1  id.  246;  Chapman  v.  Dixon,  4 
H.  &  J.  (Md.)  527;  Atkins  v.  Tredgold,  2  B.  &  C.  23;  Quarles  v.  Littlepage,  2 
H.  &  M.  (Va.)  406;  Fisher  v.  Duncan,  1  id.  563.  An  acknowledgment  in  order 
to  take  a  claim  out  of  the  operation  of  the  statute,  must  have  been  made  by  the 
debtor  himself  or  by  a  person  duly  authorized  by  him  to  make  such  acknowl- 
edgment. A  general  agent  has  no  such  authority.  McMullen  v.  Rafferty,  89 
N.  Y.  456;  Miller  v.  Magee,  2  N.  Y.  Supp.  156,  Tate  v.  Hawkins,  81  Kv.  577: 
Harlock  v.  Ashberry,  19  Ch.  D.  539;  Huntington  v.  Chesmore,  60  Vc.  566;  Mc- 
Donald v.  McDonald,  7  N.  Y.  Supp.  935;  Ryal  v.  Morris,  6S  Ga.  834;  Little  v. 
Edwards,   69   Md.   499;  Zoll   v.  Carnahan,  83  Mo.  35;   Morgan  v.  Bank,  13  Lea 

(a)  An  agent  possessing  authority  to  [1899]  2  Ch.  107.     The  agent's  act,  or 

pay  his  principal's  debt  has  authority  a  stranger's,    in    receiving    payments, 

to  promise  to  pay  it,  and  his  mere  part  though    unauthorized,    mav    doubtless 

payment  of  a  debt  amounts  to  a  promise  be  ratified.     See  Lyell  v.  Kennedy,  14 

to   pay  the   balance   so  as   to   take  the  A.  C.  437;   M'Auliffe  v.  Fitzsimons,  26 

case   out  of  the   statute,     hi  re  Hale,  L.  R.  Ir.  29. 


220  STATUTES    OF    LIMITATION.  [CHAP     VII. 

also  be  made  to  the  creditor  himself,  or  some  person  duly  author- 
ized to  act  for  him  in  that  regard,  so  that  a  new  contract,  resting 
upon  the  old  one  for  its  consideration,  may  be  set  up  in  reply  to 
the  statute,  if  it  is  pleaded  by  the  defendant ; '    and  if  it  is  made 

(Tenn.)  234;  Newbould  v.  Smith.  33  Ch.  D.  127,  14  A.  C.  423;  In  re  Hollings- 
head,  37  Ch.  D.  651.  In  all  the  cases  cited  above  it  will  be  found  thai  authority, 
express  or  fairly  implied,  existed.  The  rule  in  the  case  of  an  acknowledgment 
by  an  agent  should,  however,  be  very  carefully  guarded. 

1  Ringo  v.  Books,  26  Ark.  540;  Teessen  v.  Camblin,  1  111.  App.  424;  Niblack 
v.  Goodman,  67  Ind.  174;  McGreew  v.  Forsyth,  80  111.  596;  Faison  -.1.  Bowden. 
76  N.  C.  425;  Walker  v.  Albee,  80  111.  47;  Kirby  v.  Mills.  78  N.  C.  124;  Trous- 
dale v.  Anderson,  9  Bush  (Ky.)  276;  Reeves  v.  Corell,  19  111.  189;  Cape 
Girardeau  County  v.  Harbison,  58  Mo.  90;  Sibert  v.  Wilder,  16  Kan.  176;  Car- 
roll v.  Forsyth,  69  111.  127;  Pearson  v.  Darrington,  32  Ala.  227;  Fleming  v. 
Staton,  74  N.  C.  203;  Parker  v.  Shuford,  76  id.  219,  Zacharias  v.  Zacharias,  23 
Penn.  St.  452.  The  acknowledgment  from  which  a  promise  to  pay  a  debt  can 
be  implied  must  be  made  to  the  creditor  or  some  person  acting  for  him,  and  not 
to  a  stranger.  Bloodgood  v.  Bruen,  8  N.  Y.  362;  Spangler  v.  Spangler,  122  Pa. 
St.  358;  Cunkle  v.  Heald,  6  Mackey  (D.  C.)  485,  Badger  v.  Arch,  10  Exch.  333. 
Prior  to  the  adoption  of  the  new  theory  in  relation  to  acknowledgments,  iniliaied 
by  Tanner  v.  Smart,  supra,  an  acknowledgment  made  to  a  stranger  was  held  as 
operative  to  remove  the  bar  of  the  statute  as  though  it  had  been  made  to  the 
creditor  himself,  the  only  question  being  whether  it  was  made  in  earnest.  In 
Moore  v.  Bank  of  Columbia,  6  Pet.  (U.  S.)  86,  the  defendant,  being  at  a  tavern 
with  a  party  of  friends,  said  to  them  that  he  had  paid  off  every  debt  except  one 
five-hundred-dollar  note  which  he  owed  to  the  bank,  and  could  pay  off  at  any 
time;  and  it  was  held  that  this  was  not  sufficient  to  remove  the  statute  bar, 
because  the  place,  the  occasion  and  manner  in  which  the  declaration  was  made 
repelled  the  inference  of  a  serious  admission  that  the  debt  still  imposed  a  duty 
upon  him  to  pay  it.  See  Wainman  v.  Kynman,  1  Exch.  118,  where  this  was 
held  a  question  for  the  jury.  In  England,  prior  to  the  passage  of  Lord  Tenter- 
den's  act,  and  while  the  theory  as  to  presumptions  arising  from  the  statute  pre- 
vailed, it  was  held  to  be  immaterial  whether  the  acknowledgment  or  promise 
was  made  to  the  creditor  or  a  stranger,  and  such  was  the  rule  in  this  country; 
and  as  that  statute,  upon  a  fair  construction,  did  not  affect  this  question,  the 
change  in  the  rule  is  due  entirely  to  a  change  in  the  theory  of  the  law  in  this 
regard.  Illustrative  of  this  rule  is  Mountstepher.  v.  Brooke,  3  B.  &  Aid.  141, 
in  which,  in  a  deed  made  between  the  defendants  and  a  third  person,  admission 
was  made  by  the  defendants  of  a  debt  due  to  the  plaintiffs,  who  were  strangers 
to  the  deed,  and  it  was  held  sufficient.  Again,  in  Halliday  v.  Ward,  3  Camp. 
32,  where  the  defendant,  a  Ouaker,  wrote  to  his  father,  who  was  a  co-obligor 
with  him  on  a  promissory  note,  as  follows:  "  With  regard  to  Halliday's 
money,  thou  must  settle  it  thyself,"  Lord  EUenborough  said  that  the  letter 
acknowledged  the  existence  of  the  debt  (although  not  to  the  plaintiff),  and  that 
the  promise  to  pay  was  raised  by  law.  So,  in  Clark  v.  Hougham,  2  B.  &  C. 
1  iv  ;m  admission  to  one  of  the  several  parties  was  held  to  inure  for  the  benefit 
of  all  for  this  purpose,  and  though  it  was  suggested  that  the  admission  was 
made  to  one  as  the  agent  of  the  others,  it  was  expressly  held   that  agency  was 


§  79-]  ACKNOWLEDGMENTS.  22 1 

to  an  agent  of  the  creditor,  in  order  to  make  it  operative  it  must 
appear  that  the  debtor  at  the  time  knew  that  the  person  to  whom 
the  acknowledgment  or  promise  was  made  was  acting  as  the  agent 
of  the  creditor,  or  was  made  to  a  person  under  such  circum- 
stances as  show  an  intention  on  the  debtor's  part  that  such  per- 
son should  communicate  the  acknowledgment  to  the  creditor,  so 
that  such  person  may  fairly  be  said  to  be  the  debtor's  agent  for 
that  purpose,1  or  it  will  have  no  more  effect  than  it  would  have 
if  made  to  a  stranger.2  But  it  has  been  held  that  a  promise  or 
acknowledgment  made  to  the  creditor  or  his  authorized  agent 
will  inure  to  the  benefit  of  his  assignee.3  So,  too,  the  acknowl- 
edgment must  be  made  by  a  person  who  is  legally  competent  to 
contract;  because,  as  the  acknowledgment,  to  be  operative,  must 
be  such  as  to  raise  a  new  contract  to  pay,  resting  upon  the  old 
debt  for  its  consideration ;  if  he  was  resting  under  any  legal  dis- 
ability at  the  time,  it  will  be  inoperative;4  and,  except  where  the 
statute  otherwise  so  provides,  where  an  acknowledgment  in  writ- 
ing is  required,  it  is  held  that  the  acknowledgment  must  be  made 
by  the  debtor  personally.5     Where,   however,    the   statute  does 

not  necessary  to  be  proved.  So  far  it  seems  that  under  the  new  theory  and  the 
old,  an  admission  to  a  third  person  was  sufficient.  There  are,  however,  many 
recent  decisions  on  the  other  side,  holding  the  only  consistent  doctrine  (hat  such 
an  acknowledgment  is  not  sufficient.  Godwin  v.  Culley,  4  H.  &  M.  373;  Gren- 
fell  v.  Girdlesione,  2  Y.  &  C.  662;  Kyle  v.  Wells,  17  Penn.  St.  286;  Gillingham 
■v.  Gillingham,  13  id.  302;  Bloodgood  v.  Bruen,  S  N.  Y.  362,  and  cases  supra. 
1  Bachman  v.  Roller,  9  Baxt.  (Tenn.)  409,  40  Am.  Rep.  97. 

5  McKinney  v.  Snyder,  78  Penn.  St.  497. 

3  Pinkerton  v.  Bailey,  8   Wend.  (N.  Y.)  600.     But  see  Cripps  v.  Davies,  12  M. 

6  W.  159. 

4  Kline  v.  Guthart,  2  Penn.  490;  Richmond,  Petitioner,  2  Pick.  (Mass.)  567. 
An  acknowledgment  must  be  made  to  the  creditor  or  his  agent.  Croman  v. 
Stull,  119  Penn.  St.  91;   Fort  Scott  v.  Hickman,  112  U.  S.  150;   Roscoe  v.  Hale, 

7  Gray  (Mass.)  274;  Niblack  v.  Goodman,  67  Ind.  174;  Dinguid  v.  Schoolneld,  32 
Gratt.  (Va.)  803;  Hussey  v.  Kirkman,  95  N.  C.  63;  Clawson  v.  McCune,  20 
Kan.  337;  Hargis  v.  Sewell,  87  Ky.  63;  McKinney  v.  Snyder,  78  Penn.  St.  497; 
Libby  v.  Robinson,  79  Me.  168;  Maxwell  v.  Reilly,  n  Lea  (Tenn.)  307;  Acker- 
man  v.  Sherman,  9  N.  Y.  91;  In  re  Kendrick,  107  N.  Y.  104.  In  New  York  it  is 
held  that  an  acknowledgment  to  a  third  person,  with  the  intention  that  it  shall 
be  communicated  to  the  creditor,  is  sufficient.  De  Freest  v.  Warner,  98  N.  Y. 
217.  See  Re  Kendrick,  107  N.  Y.  104,  109;  Bachman  v.  Roller,  9  Baxt.  (Tenn.) 
409.  This  necessarily  involves  the  rule  stated  supra,  because  under  such  cir- 
cumstances the  debtor  makes  the  stranger  his  agent,  for  the  purpose  of  renewing 
the  debt. 

6  Hyde  v.  Johnson,  3  Scott.  289;  Pott  v.  Clegg,  16  M.  &  W.  321;  Gibson  v. 
Baghatt,  cited  in  Whippy  v.  Hillary,  5  C.  &  P.  209. 


222  STATUTES   OF   LIMITATION.  [CHAP.   VII. 

not  require  that  the  acknowledgment  should  be  made  in  writing 
and  signed  by  the  party  to  be  charged,  and  it  is  not  made  by  the 
debtor  in  person,  it  must  be  made  by  some  person  by  him  thereto 
legally  authorized.1  But,  under  the  statute  of  James,  it  was  held 
that  the  acknowledgment  might  be  made  either  by  the  defendant 
in  person  or  by  his  agent,  and  power  to  acknowledge  might  be 
implied.2  Lord  Ellenborough3  lays  down  the  general  rule,  that  if 
a  man  refers  another  upon  any  particular  business  to  a  third  per- 
son, he  is  bound  by  what  this  third  says  or  does  concerning  it,  as 
much  as  if  that  had  been  said  or  done  by  himself.  Under  this 
rule  an  admission  by  a  wife,  who  was  accustomed  to  conduct  the 
business  of  her  husband,  was  held  sufficient  to  take  the  case  out 
of  the  statute  in  an  action  against  the  husband.4  And  where 
goods  were  supplied  to  a  wife  usually  living  apart  from  her  hus- 
band, for  her  own  use,  she  was  considered  to  be  her  husband's 
agent  for  the  purpose  of  making  an  acknowledgment.5  But  a 
married  woman  cannot  effectually  acknowledge  a  debt  contracted 
duni  sola}  (a)  Under  the  rule  as  stated,  that  an  acknowledgment 
or  promise,  in  order  to  take  a  debt  out  of  the  statute,  must  be 
made  to  the  creditor  or  his  agent,  it  follows  as  a  matter  of  course 
not  intended  for  the  creditor,7  or  which,  if  he  is  a  party  thereto, 
was  never  delivered  to  him,8  cannot  have  the  effect  to  raise  a  new 
promise  to  pay  the  debt.  Thus,  the  entry  of  a  check  on  the 
books  of  the   drawer   as   unpaid;9  the  insertion  of  a  debt  in  the 

1  Ringo  v.  Brooks,  supra. 

8  Where  an  agent  was  employed  to  pay  money  for  work  done,  and  the  work- 
men, with  his  consent,  were  referred  to  him  for  payment,  it  was  held  that  an 
acknowledgment  or  promise  made  bv  him  was  sufficient  to  remove  the  statute 
bar.     Burt  v.  Palmer,  5  Esp.  145. 

3  Williams  v.  Innes,  1  Camp.  364. 

4  Anderson  v.  Sanderson,  Holt  N.  P.  591. 
6  Gregory  v.  Parker,  1  Camp.  394. 

6  Pittam  v.  Foster,  1  Barn.  &  Cr.  248. 

1  Merriam  v.  Leonard,  6  Cush.  (Mass.)  151. 

8  Allsn  v.  Walton,  70  Mo.  13S. 

9  Harman  v.  Claiborne,  1  La.  Ann.  342. 

(n)  In  England  the  statute  of  limita-  ing  judgment  to  be    obtained  against 

tin,    applies    to    debts    payable    by   a  her,  although  such  acts  of  hers  appear 

married    woman    out    of    her  separate  not  to  affect  her  husband,  and  similar 

esiate.      II allett  v.  Hastings,  35  Ch.  D.  acts    by  him    do   not  affect  her  direct 

<)X.       I  li  •   Married   Woman's  Property  liability    to    her    creditors.       Beck    v. 

Art,  [882,  doubtless  enables  a  wife  to  Pierce,  23  Q.  B.  D.  316,  322.     See  /;/  r< 

keep  alive  her    li  1  lii  1  i Lies    in   respect  to  Havves,  62   L.  J.  Ch.  463,  and  67  L.  T. 

eparale  estate  by  an  acknowlcdg-  756;  Heynest'.  Dixon,  [1900J  2  Ch.  561. 
mem  or  by  part  payment,  or  by  suffer- 


§  79-]  ACKNOWLEDGMENTS.  22$ 

schedule  of  debts  filed  and  sworn  to  in  insolvency  proceedings;1 
a  private  memorandum  of  the  debt  in  a  book  of  the  defendants  ;a 
a  written  acknowledgment  of  the  debc,  found  among  the  debtor's 
papers  after  his  decease;3  or  a  mortgage  duly  executed,  to  secure 
the  payment  of  the  debt,  but  never  deliveied4  —  have  all  been 
held  insufficient  to  renew  the  debt.  So,  too,  it  is  held  that  a 
debt  is  not  revived  by  a  clause  in  the  debtor's  will,  directing 
that  all  his  just  debts  shall  be  paid,5  nor  will  such  direction  stop 
the  running  of  the  statute.6 

In  all  the  cases  where  a  contrary  rule  is  adopted,  the  question 
arose,  and  was  decided  under  the  old  theory  that  the  statute 
raises  a  presumption  that  the  debt  has  been  paid,  and  that  the 
debtor  has  lost  the  evidence  thereof,  and  an  acknowledgment 
rebuts  this  presumption,  or  that  the  case  is  distinguishable  from 
these,  and  the  acknowledgment  or  promise  was  made  under  such 
circumstances  that  the  creditor  not  only  had  a  right  to  rely  upon, 
but  could  legally  enforce  it.  This  condition  exists  when  it  is 
predicated  upon  a  new  consideration,  or  the  circumstances  are 
such  as  to  show  that  the  debtor  intended  that  it  should  be  com- 
municated to  the  creditor,  or  that  it  should  renew  the  debt;7  and 
this  intention  may  be  implied  from  the  circumstances.  Thus, 
where  a  dying  man  said  to  a  bystander  that  he  owed  the  plaintiff 
a  certain  sum  for  a  slave,  which  he  desired  to  have  paid,8  it  was 
held  a  sufficient  acknowledgment;  and,  although  this  was  held  at 
a  time  when  the  old  theory  prevailed,  it  is  equally  applicable 
under  the  new,  because  it  shows  an  intention  on  the  debtor's  part 
to  have  the  debt  kept  on  foot.9 

1  Hidden  v.  Cozzens,  2  R.  I.  401;  Christy  v.  Flemington,  10  Perm.  St.  129; 
Brown  v.  Bridges,  2  Miles  (Penn.)  424;  Georgia  Ins.  Co.  v.  Endicott,  Taney 
(U.  S.)  130;  Richardson  v.  Thomas,  13  Gray  (Mass.)  381.  But  an  inventory  and 
affidavit  of  a  debt,  made  for  the  purpose  of  securing  a  discharge  from  the  debt 
in  insolvency,  has  been  held  sufficient,  Bryar  v.  Willcocks,  3  Cow.  (N.  Y.)  159; 
as  in  such  a  case  the  creditor  may  be  said  to  be  a  party  to  the  proceedings. 

2  Edwards  v.  Culley,  4  H.  &  M.  378,  Pollock,  C.  B. 

3  Allen  v.  Walton,  70  Mo.  138. 

4  Merriam  v.  Leonard,  6  Cush.  (Mass.)  151. 

6  Smith  v.  Porter,  1  Binn.  (Penn.)  209;  Agnew  v.   Fetterman,  4  Penn.  St.  56. 

'Rush  v.  Fales,  1   Phila.  (Penn.)  463. 

1  Jordan   v.  Hubbard,  26  Ala.  433;  Collett  v.  Frazier,  3  Jones  Eq.  (N.  C.)  86. 

8  Collett  '•'.  Frazier,  supra. 

9  In  Ross  v.  Ross,  6  Hun,  (N.  Y.)  80,  the  defendant,  as  one  of  the  executors  of 
the  testator  embraced  in  an  inventory  of  the  assets  of  the  estate,  made  and  veri- 


224  STATUTES   OF    LIMITATION.  [CHAP.    VII. 

In  Maine,  'where  the  defendant,  as  treasurer  of  the  plaintiff 
corporation,  made  charges  against  himself  in  the  corporation 
books  for  interest  on  a  note  given  by  him  to  the  corporation,  it 
was  held  such  an  acknowledgment  of  the  note  as  removed  the 
statutory  bar.2  There  are  also  cases  where,  although  the 
acknowledgment  or  promise  was  not  made  directly  to  the  cred- 
itor or  his  agent,  yet  being  made  for  the  purpose  of  deriving,  and 
having  derived,  an  advantage  therefrom,  it  is,  in  effect,  held  that 
he  is  estopped  from  setting  up  the  statute,  upon  the  ground  that 
he  cannot  be  allowed  to  take  the  benefit  of  the  acknowledgment 
and  then  repudiate  its  obligation.  That  is,  where  a  debtor  under 
such  circumstances  derives  an  advantage  from  the  acknowledg- 
ment, he  is  treated-  as  having  intended  that  it  should  be  accepted 
as  such,  and  confided  in  by  the  creditor.3     With  the  exceptions 

fied  by  him  in  the  usual  form,  certain  notes  given  by  him  to  the  testator  in  his 
lifetime,  and  upon  which  the  statute  had  run,  and  it  was  held  a  sufficient 
acknowledgment  in  writing  to  take  the  notes  out  of  the  statutes.  Brady,  J.,  in 
delivering  the  opinion  of  the  court,  after  adopting  the  rule  as  to  the  character 
of  an  acknowledgment  required  to  take  a  debt  out  of  the  statute,  as  held  in  the 
courts  of  that  State,  (see  Winchell  v.  Hicks,  18  N.  Y.  558;  Mosher  v  Hubbard, 
13  Johns.  (N.  Y.)  510;  Frost  v.  Bengough,  1  Bing.  266;  Bloodgood  v.  Bruen,  8 
N.  Y.  368;  Turner  v.  Martin,  4  Robt.  (N.  Y.)  661;  Loomis  v.  Decker,  1  Daly 
(N.  Y.)  186;  Com.  Mut.  Ins.  Co.  v.  Brett,  44  Barb.  (N.  Y.)  489;  McNamee  v. 
Tenny,  41  id.  495),  said:  "  It  seems  to  be  impossible  reasonably  to  draw  any 
other  inference  from  the  statement  of  them  (the  notes  in  suit)  as  assets,  when 
he  had  it  in  his  power  to  characterize  them  as  outlawed  and  valueless.  He 
could,  at  least,  have  assumed  that  attitude,  but  there  is  no  evidence  that  he  did 
so.  *  *  *  The  statement  of  the  notes  as  assets  is  in  itself  sufficient  Lo  take 
them  out  of  the  statute."  See  also  Berens  v.  Boutte,  31  La.  Ann.  112,  where  a 
similar  doctrine  was  held  as  to  a  debt  presented  against  the  estate,  and  which 
the  executor  entered  as  a  claim  against  the  estate  to  be  paid.  But  see  Bell's 
Estate,  25  Penn.  St.  92,  where,  under  a  similar  state  of  facts,  the  insertion  of 
his  own  note  in  the  inventory  of  the  estate  was  held  not  sufficient  to  estop  the 
executor  from  setting  up  the  statute  to  defeat  the  same;  this  seems  the 
better  rule,  as  such  an  act  is  hardly  voluntary,  but  is  done  in  the  performance 
of  a  duty  required  and  imposed  by  law.  In  Stuart  v.  Foster,  18  Abb.  Pr. 
(N.  Y.)  305,  James,  J.,  said:  "  The  code  does  not  define  what  the  writing  shall 
be;  it  merely  requires  the  acknowledgment  or  promise  to  be  in  writing,  signed 
by  the  party  charged,  and,  for  aught  I  can  see,  it  can  as  effectually  be  made  in 
neral  assignment  for  the  benefit  of  creditors  as  in  any  other  instrument." 

'  Blue  Hill  Academy  v.  Ellis,  32   Me.  200. 

'  Bui  quaere t  can  such  an  acknowledgment  be  regarded  as  sufficient  under  the 
statute  in  Maine,  which  provides  that  no  acknowledgment,  etc.,  shall  be  suffi- 
<  i'-nt,  unless  such  acknowledgment  or  promise  be  an  express  one,  and  made  or 
contained  in  some  writing,  signed  by  the  party  chargeable  thereby? 

3  In  Uinguid  v.  Schoolfield,  32  Gratt.  (Va.)  803,  it  was  held  that  where  a  maker 


§  80.J  ACKNOWLEDGMENTS.  22$ 

named,  it  is  now  generally  held  that  a  debt  cannot  be  revived 
through  the  instrumentality  of  casual  conversation  with  persons 
neither  legally  nor  equitably  interested  in  the  debt.1 

SEC.  8o.  Offer  to  arbitrate,  Recital  in  Deeds,  &c. —  Under  the 
old  rule,  that  a  naked  admission  that  a  debt  existed  would  remove 
the  statute  bar,  although  the  words  and  acts  of  the  parties 
repelled  the  inference  of  a  promise  to  pay,  an  offer  or  agreement 
to  refer  or  arbitrate  claims  barred  by  the  statute  was  held  suffi- 
cient;2 but  under  the  rule  now  existing,  that  an  acknowledgment 
must  be  such  that  a  promise  to  pay  can  be  implied,  such  an  agree- 
ment of  itself  could  be  insufficient.3  So,  too,  under  the  old  rule, 
a  recital  in  a  deed  to  which   the    creditor  was   not  a  party,  of  a 

of  a  note,  in  a  deposition  made  by  him  in  a  case  to  which  the  payee  of  the  note 
was  not  a  party,  swore  that  the  note  was  an  outstanding:  obligation  against  him, 
for  the  purpose  of  getting  credit  for  the  note  as  to  be  paid  by  him,  and  upon 
which  he  did  obtain  such  credit,  the  acknowledgment  was  such  that  the  creditor 
could  avail  himself  of  in  answer  to  a  plea  of  the  statute,  set  up  to  defeat  an 
action  upon  the  note.  The  court  said:  "  The  next  and  only  remaining  ground 
of  error  is,  that  the  plaintiff,  not  being  a  party  to  the  suit  in  which  the  deposition 
was  taken,  the  statements  therein  cannot  be  construed  as  admissions  or  acknowl- 
edgments made  to  him,  and  that  no  promise  of  payment  can  be  implied  from  an 
acknowledgment  of  a  debt  so  as  to  take  it  out  of  the  operation  of  the  act  of  limi- 
tations, unless  such  acknowledgment  bs  made  to  the  creditor  to  whom  the  debt 
is  owing,  or  to  some  person  representing  him  by  authority;  "  citing  Joynes  on 
Limitations,  120,  where  it  is  stated  that  the  acknowledgment  is  sufficient  if  made 
to  a  third  person,  and  proceed:  "  There  have  since  been  numerous  decisions, 
both  in  England  and  the  United  States,  adverse  to  the  views  expressed  by  this 
author,  and  it  is  said  in  a  recent  work  of  merit  that,  according  to  the  decided 
weight  of  the  latest  decisions  in  this  country,  a  promise  to  pay  a  debt,  made  to 
a  person  not  legally  or  equitably  interested  in  the  same,  and  who  does  not  pre- 
tend to  have  had  any  authority  from  the  creditor  to  call  upon  the  creditor  in 
relation  to  the  debt,  will  not  avoid  the  bar  of  the  statute."  The  court  dis- 
tinguished the  case  in  hand  on  the  ground  that  the  deposition  was  made  to 
establish  the  validity  of  the  debt,  and  gain  him  credit  for  it,  and  "  he  must 
therefore  be  understood  to  have  intended  that  his  acknowledgment  of  the  debt, 
under  the  attending  circumstances,  should  be  accepted  as  such,  and  confided 
in  and  acted  upon  by  the  creditor  to  whom  the  debt  was  due.  He  cannot  be 
allowed  lo  take  the  benefit  of  the  acknowledgment  and  then  repudiate  its 
obligation." 

1  Ringo  v.  Brooks,  26  Ark.  540;  Gillingham  v.  Gillingham,  17  Penn.  St.  302; 
Morehead  v.  Wriston,  73  N.  C.  398;  Wachter  v.  Albee,  80  111.  47;  Kisler  v. 
Sanders,  40  Ind.  78;  Sibert  v.  Wilder,  16  Kan.  176,  22  Am.  Rep.  280;  Fletcher 
v.  Updike,  3  Hun  (N.  Y.)  350;  Cape  Girardeau  County  v.  Harbison,  58  Mo.  90; 
Trousdale  v.  Anderson,  9  Bush  (Ky.)  276. 

'  Conkling  v.  Thackston,  C.  &   N.  93;   Barney  v.  Smith,  4  H.  &  J.  (Md.)  496. 

3  Shaw  v.  Newell,  1  R.  I.  488;   Russel  v.  Gass,  Mart.  &  Y.  (Tenn.)  270. 
[stats,  of  lim.  —  15.] 


226  STATUTES    OF    LIMITATION.  [CHAP-    vn- 

debt  barred  by  the  statute,  was  held  sufficient  to  revive  the 
debt ; 1  but  the  question  whether  such  a  recital  would  now  be 
deemed  sufficient  is  dependent  upon  the  circumstance  whether  it 
is  so  made  that  the  creditor  can  rely  upon  it  as  a  promise  to  pay 
the  debt  in  question,  and  may  set  :t  up  in  reply  to  a  plea  of  the 
statute.2 

In  this  view,  which  is  the  only  one  consistent  with  the  present 
theory,  which  requires  an  acknowledgment  to  be  such  that  a  new 
promise  to  pay  the  debt  may  be  implied  therefrom,  sufficient  to 
enable  the  creditor  to  set  it  up  as  a  reply  to  the  statute  as  a  new 
ground  of  action,  it  follows  that  in  order  to  make  the  recital  of  a 
debt  due  to  a  person  not  a  party  thereto,  in  a  deed  or  other 
instrument,  sufficient  to  remove  the  statute  bar,  it  must  be  made 
under  such  circumstances  and  for  such  a  purpose  as  to  clearly 
indicate  that  the  debtor  intended  that  such  recital  should  be  con- 
fided in  and  relied  upon  by  the  creditor  as  an  acknowledgment 
of  the  existence  of  the  debt,  and  his  intention  to  pay  the  same,3 
and  also  in  such  a  manner  and  under  such  circumstances  that  he 
can  rely  upon  it  as  a  distinct  ground  of  action  to  rebut  a  plea  of 
the  statute.4 

1  Mountstephen  v.  Brooke,  3  B.  &  Aid.  141;  Clark  :/.  Hougham,  2  B.  &  C 
149;   King  v.  Riddle,  7  Cranch  (U.  S.)  168. 

2  In  Dinguid  v.  Schoolfield,  32  Gratt.  (Va.)  803,  35  Am.  Rep.  417,  n.,  the 
court  says:  "  The  diversity  in  the  earlier  cases  is  attributable  for  the  most 
part  to  the  different  and  somewhat  antagonistic  theories  entertained  at  different 
periods  concerning  the  design  and  policy  of  the  statute.  Under  the  leadership 
of  Lord  Mansfield,  it  was  for  a  long  time  considered,  and  held  that,  under  the 
statute  lapse  of  time  raises  a  mere  presumption  of  satisfaction,  which,  like  other 
presumptions,  might  be  repelled;  and  hence  that  a  new  promise  of  the  debtor, 
whether  express  or  implied,  was  only  evidence  of  the  pre-existing  debt,  and 
gave  no  new  cause  of  aclion.  Subsequently  this  theory  was  overturned,  and 
succeeded  by  a  course  of  decisions,  initiated  and  fostered  by  Chief  Justice  Best, 
which  regarded  and  construed  the  statute  as  one  of  repose,  and  a  new  promise 
as  a  new  contract,  and  actionable  as  such.  This  view  is  not  generally  adopted. 
Sibert  v.  Wilder,  16  Kan.  176,  22  Am.  Rep.  280.  It  would  seem  to  follow 
logically  that  the  promise,  to  be  sufficient  to  take  a  case  out  of  the  statute, 
si  ■  1  I  be  made  directly  or  immediately  to  the  creditor,  or  at  least  for  his 
benefit,  so  thai,  he  may  be  able  to  maintain  an  action  upon  it.  It  is  said  that 
the  declaration  or  admission  to  a  third  person  is  deemed  insufficient,  not  so 
much  because  the  acknowledgment  is  made  to  a  stranger,  as  because  there  is 
no  sufficient  evidence  of  an  intention  to  promise."  1  Smith's  Leading  Cases, 
Part   1 1,  marg.,  page  976, 

3  Sf-r  Dinguid  v.  Schoolfield,  supra, 

*  In  Palmer  v.  Butler,  36  Iowa,  576,  it  is  held  that  if  a  mortgagor,  in  a  subse- 


§  8 1.]  ACKNOWLEDGMENTS.  227 

Where  a  deed  conveying  the  equity  of  redemption  of  certain 
lands  contained  a  recital  of  a  previous  mortgage  thereon,  and 
stated  that  both  the  sum  of  ,£1,200  and  ,£300,  which  the  mort- 
gage was  given  to  secure,  remained  unpaid,  "all  interest  for  the 
same  having  been  paid,"  up  to  the  date  of  the  deed,  and  the 
assignee  of  the  equity  covenanted  to  pay  the  mortgage,  and  it 
was  proved  that  the  assignee  of  the  equity  had  paid  the  interest 
thereon  regualrly  ever  since,  it  was  held  a  sufficient  acknowledg- 
ment of  the  debt  to  keep  it  on  foot  for  a  period  of  twenty  years 
from  the  date  of  the  deed.1  (a). 

Sec.  81.  When  Acknowledgment  must  be  made. —  In  some 
cases  a  distinction  is  made  between  the  recognition  of  a  debt 
before  the  statute  has  run  upon  it,  and  one  upon  which  the  stat- 
ute has  already  run ; 2  but  the  rule  generally  adopted,  and  the 
only  tenable  one,  is,  that  it  is  immaterial  whether  the  acknowl- 
edgment precedes  or  follows  the  bar,3  as  in  all  cases  it  is  only 
necessary  to  establish  the  continued  existence  of  the  debt  at  the 

quent  mortgage,  or  in  a  deed  of  the  same  premises,  should  refer  to  a  prior 
mortgage,  which  is  barred  by  ihe  statute  as  unpaid,  and  a  lien  upon  the 
premises,  to  which  the  deed  or  second  mortgage  is  subject,  it  is  a  sufficient 
acknowledgment  to  take  the  prior  mortgage  out  of  the  statute  both  as  to  the 
mortgagor  and  the  mortgagee;  and  the  same  rule  would  apply  to  any  instrument 
in  which  the  debt  is  recited  under  such  circumstances  and  in  such  language  as  to 
evince  an  intention  on  the  debtor's  part  to  keep  the  debt  on  foot,  and  to  give 
the  creditor  the  right  to  rely  and  act  upon  such  recital.  As  if  A.,  being  indebted 
to  B.,  enters  into  a  written  contract  wil  h  C,  by  I  he  terms  of  which  C,  agrees 
to  pay  A's  debt  to  B.,  this  would  be  a  sufficient  acknowledgment  to  create  a 
new  promise.  That  the  recital  of  such  a  mortgage  debt,  in  a  subsequent  mort- 
gage before  the  statute  has  run  thereon,  does  not  operate  as  an  acknowledg- 
ment in  writing,  as  is  required  by  the  statute  to  keep  the  debt  on  foot  for 
another  statutory  period,  has  been  held  in  the  English  courts;  and  this  would 
seem  to  be  the  true  rule.      Howcutt  v.  Bonser,  3  Exch.  499. 

1  Forsyth  v.  Bristowe,  8  Exch.  716. 

2  Bowdre  v.  Hampton,  6  Rich.  (S.  C.)  208;  Deloach  v.  Turner,  7  id.  143; 
Young  v.  Monpoey,  2  Bailey  (S.  C.)  278. 

3  Ayers  v.  Richards,  12  111.  146;  Little  v.  Blunt,  16  Pick.  (Mass.)  359;  Austin 
v.  Bostwick,  9  Conn.  496;  Carlton  v.  Ludlow  Woollen  Mill,  27  Vt.  496;  Bowen 
v.  Miller,  3  Clark  (Penn.)  326;  M'Williams'  Estate,  id.  321;  Steel  v.  Steel,  12 
Penn.  St.  64;  Yaw  v.  Kerr,  47  id.  333;  Agnew  v.  Fetterman,  4  id.  56;  Forney  v. 
Benedict,  5  id.  225. 

(a)  Under  the  Act  of  3  &  4  Will.  4,  sufficient  to  keep  alive  the  right  of  ac- 

ch.  42,  §  5,  the  payment  of  interest  by  tion    on    the     mortgagor's    covenants, 

an  assignee  for  life  of  an  equity  of  re-  Dibb  v.  Walker,  [1893]  2  Ch.  429. 
d?mption  is  still  held  in  England  to  be 


228  STATUTES   OF   LIMITATION.  [CHAP.   VII. 

time  when  the  action  was  brought.  Formerly  it  was  held  that 
the  recognition  of  a  debt,  even  after  action  brought,  was  suffi- 
cient to  remove  the  statute  bar;1  but  under  the  theory  that  an 
action  upon  such  a  claim  can  only  be  brought  where  an  implied 
promise  can  be  raised,  it  follows  as  a  matter  of  course  that  the 
acknowledgment  or  promise  must  have  been  made  before  the 
action  was  brought.2 

The  distinction  between  the  acknowledgment  of  a  debt  before 
and  one  after  the  statute  has  run  consists  merely  in  its  effect  upon 
the  debt  and  the  remedy.  An  acknowledgment  or  promise 
made  before  the  statute  has  run  vitalizes  the  old  debt  for  another 
statutory  period  dating  from  the  time  of  the  acknowledgment  or 
promise,  while  an  acknowledgment  made  after  the  statute  has 
run  gives  a  new  cause  of  action,  for  which  the  old  debt  is  a  con- 
sideration.3 The  plaintiff  may,  in  the  latter  case,  but  not  in  the 
former,  declare  upon  the  new  promise;4  but  the  practice  in  most, 
of  the  States  is  to  declare  upon  the  old  debt,  and,  when  the  stat- 
ute is  pleaded,  to  reply  the  new  promise,  and  the  issue  is  then 
upon  the  plea  and  the  replication,  the  replication  to  that  extent 
being  treated  as  a  declaration  upon  the  new  promise;  and  in 
most  of  the  States  this  is  held  to  be  the  only  proper  remedy,  and 
is  certainly  the  safest.5  And  it  makes  no  difference  in  this 
respect  that  the  promise  is  conditional.6  If  the  debtor  does  not 
perform  the  conditions  agreed  to  by  him,  the  creditor  is  remitted 
to  his  original  remedy  and  to  a  plea  of  the  statute  thereto,  and 
he  must  reply  the  new  promise;  and  if,  upon  the  plaintiff's  part, 
there  is  no  fault  as  to  the  failure  of  the  conditions,  the  new 
promise  becomes  an  absolute  one  upon  the  old  debt.7  If  the 
condition    is  one  which   does   not  depend  upon  the  act  of  either 

'  Danforth  v.  Culver,  n  Johns.  (N.  Y.)  146. 

:  In  Bateman  v.  Pinder,  3  Q.  B.  574,  a  part  payment  made  after  the  action 
was  brought  was  held  inoperative  to  remove  the  statute  bar;  this  is  a  necessary 
sequence  of  the  theory  that  an  acknowledgment  or  new  promise  creates  a  new 
cause  of  action. 

"  Carr  v.  Robinson,  8  Bush  (Ky.)  269. 

4  Lonsdale  v.  Brown,  4  Wash.  (U.  S.)  149;  Little  v.  Blunt,  9  Pick.  (Mass.)  488. 

'-  Lord  v.  Shaler,  3  Conn.  131;  Dean  v.  Hewit,  $  Wend.  (N.  Y.)  257;  Pinkerton 
Bailey,  8  id.  600;  Irving  v.  Veitch,  3  M.  &  W.  90. 

•  In  Irving  v.  Veitch,  supra,  this  question  was  decided  according  to  the  state- 
ment in  the  text. 

1  Stone  v.  Rogers,  2  M.  &  W.  443;  Thompson  v.  Osborne,  2  Starkie,  98;  Davies 
.  ili,  4  I •■■  p.  36. 


§  8l.]  ACKNOWLEDGMENTS.  22Q 

party,  as  if  there  is  "  a  promise  to  pay  when  able,"  the  plaintiff 
under  his  replication  is  simply  put  to  his  proof  that  the  defend- 
ant was,  at  the  time  of  action  brought,  of  sufficient  ability.'-  But 
if  the  condition  is  one  which  is  dependent  upon  the  action  of  the 
defendant,  as  if  he  promises  to  pay  a  certain  sum  each  year,  for  a 
certain  number  of  years,  it  is  only  incumbent  upon  the  plaintiff 
to  show  that  the  instalments  were  not  paid,  as  agreed.' 

In  Ohio,  it  has  been  held  that  neither  an  acknowledment,  new 
promise,  nor  part  payment  after  the  debt  is  barred  will  revive  it.5 
Whether  this  ruling  was  justified  by  the  language  of  the  statute 
may  be  doubted,  but  the  doctrine  is  supported  by  the  dicta  of 
several  cases  in  other  States;  the  rule  itself  seems  not  founded  in 
principle,  and  is  contrary  to  the  actual  doctrine  of  all  the  authori- 
ties outside  of  that  State,  from  the  time  when  these  statutes 
were  first  adopted.  Indeed,  it  has  been  doubted  whether  an 
acknowledgment  made  before  the  statute  has  run  upon  a  debt 
is  supported  by  a  sufficient  consideration  to  render  it  operative  to 
suspend  the  running  of  the  statute.4  But  this  doubt  was  only 
short-lived,  and  it  is  now  settled  that  a  promise  to  pay,  made 
either  before  or  after  the  debt  is  barred,  will  suspend  or  remove 
the  statute  bar.5  The  new  promise  or  acknowledgment  must  be 
shown  to  have  been  made  upon  a  week-day,  as  in  all  those  States 
where  the  statute  renders  contracts  made  upon  the  Sabbath  void, 
such  an  acknowledgment  or  promise  made  upon  Sunday  is 
inoperative.6 

1  Lord  Kenyon,  in  Davies  v.  Smith,  supra, 

2  Irving  v.  Veitch,  3  M.  &  W.  90. 

3  Hill  v.  Henry,  17  Ohio,  9. 

4  Farley  v.  Kustenbader,  3  Penn.  St.  418;  Case  v.  Cushman,  1  id.  241;  Morgan 
v.  Walton,  4   id.  321. 

5  Hazlebacker  v.  Reeves,  9  Penn.  St.  258;  Forney  v.  Benedict,  5  id.  225; 
Patton  v.  Hassinger,  69  id.  311;  Wetham's  Estate,  6  Phila.  (Penn.)  161. 

6  Haydock  v.  Tracy,  3  W.  &  S.  (Penn.)  507;  Clapp  v.  Hale,  112  Mass.  368. 
In  Maryland,  an  acknowledgment  made  on  Sunday  is  sufficient,  Thomas  v. 
Hunter,  29  Md.  406;  and  in  Connecticut,  in  Beardsley  v.  Hall,  36  Conn.  270, 
while  the  general  doctrine  was  not  denied,  vet  evidence  that  the  defendant 
admilted  upon  Sunday  that  a  sum  of  money  by  him  previously  paid  to  the 
plaintiff  was  to  be  applied  upon  the  note  in  suit  was  held  admissible. 


23O  STATUTES   OF   LIMITATION.  [CHAP.   VIII. 


CHAPTER  VIII. 
Acknowledgments  in  Writing. 

Sec.   82.  Lord  Tenterden's  Act.  Sec.   So.   Instances    of    Sufficient    Ac- 

83.   Similar     Statutes    in     this  knowledgments. 

Country.  90.   Direction    in    a    Will,   to    pay 

S4.   Effect  of  Statutes  requiring  a  Debts. 

Writing.  gi.   Debts  due  from  Corporations. 

85.  Sufficiency  of.     Instances.  92.   Entry   of    Debt    in    Schedule, 

86.  Acknowledgment  must  clear-  Deed,  etc. 

ly    refer    to    the    Particular  93.  Sufficiency  of,  for   the   Court, 

Debt.  except. 

87.  Distinction  between  Absolute  94.   Must  be  signed  by  the  Debtor. 

and      Qualified      Promises,  95.   Promise  must  bind  the  Debtor 

etc.     Illustrations.  personally.    Conditions, 

88.  Promise,   etc.,    must  be   defi-  Effect  of. 

nite.     Amount  need  not  be 
slated. 

SEC.  82.  Lord  Tenterden's  Act.  —  In  England,  the  great  laxity 
that  existed  in  reference  to  the  removal  of  the  statute  bar  by 
parol  acknowledgments,  and  the  strong  tendency  on  the  part  of 
the  courts  to  relieve  parties  from  the  effect  of  the  statutes  upon 
the  slightest  proof,  as  well  as  the  great  temptation  to  perjury 
afforded  by  the  rules  established  by  the  courts,  aroused  a  strong 
public  sentiment,  especially  in  the  minds  of  the  leading  lawyers 
of  the  country,  to  the  necessity  of  some  change  in  the  statute  as 
to  the  methods  of  proof  of  acknowledgments;  and  in  May,  1828, 
the  statute  of  9  Geo.  IV.,  c.  14,  known  as  Lord  Tenterden's  Act, 
was  passed,  and  went  into  effect  Jan.  1,  1S29.  This  statute 
makes  a  writing  necessary  to  an  effectual  acknowledgment  in 
cases  under  the  statute  of  James  and  the  kindred  Irish  act.1 
Although  the  act  contains  a  recital  that  various  questions  have 
arisen  as  to  the  proof  and  effect  of  acknowledgments,  it  has  been 
decided  that,  practically,  the  act  is  to  be  construed  as  altering 
the  mode  of  proof  only,  and  not  the  legal  construction  of  acknowl- 
ments  or  promises.2 

1  See  Appendix,  and  note  (a)  below. 

Haydon  .  .  Willi  ims,  7  Bing.  163.     The  object  of  the  statute  was  simply  to 

prevent    fraud   and    perjury    in   proving   the  acknowledgment    or  promise,  by 

ring   proof  thereof,  about  which  there  can  be  no  question.     Dickenson  v. 

1 1  itfield,  5  C.  &  P.  4''.  and  to  <1»  away  with  the  absurdity  which  had  surrounded 


§  83-1  ACKNOWLEDGMENTS   IN    WRITING.  23I 

In  those  States  of  this  country  in  which  written  acknowledg- 
ments are  required,  the  provisions  are  substantially  the  same  as 
in  this  statute;  and  while  the  decisions  of  the  English  courts 
under  this  statute  are  not  controlling  authorities  here,  they  are 
respected  by  our  courts,  and  their  doctrines  are  generally  adopted 
in  the  decision  of  similar  questions. 

Sec.  83.  Similar  Statutes  in  this  Country.  —  Similar  statutes 
have  been  adopted  in  nearly  all  of  the  States  of  this  country. 
In  Vermont,  Massachusetts,  Michigan,  Oregon,  Minnesota, 
Nevada,  and  California,  and  the  other  States,  the  provisions  are 
substantially  the  same;  that  is,  that  no  acknowledgment  or  prom- 
ise shall  be  sufficient  unless  it  "  be  made  or  contained  by  or  in 
some  writing  signed  by  the  party  chargeable  thereby,"  and  also 
embodying  the  other  provisions  as  to  abatement,  indorsements, 
and  set-off.  In  Maine,  the  provision  is  the  same,  except  that 
after  the  words  ''acknowledgment"  or  "  promise  "  the  words, 
"  be  an  express  one, ' '  etc. ,  are  inserted,  thus  excluding  an  implied 
promise.  All  these  statutes  require  that  the  acknowledgment  or 
promise  shall  be  signed  by  the  person  chargeable,  and  thus  put 
it  out  of  the  power  of  the  debtor  to  act  in  this  respect  by  an 
agent.  In  Arkansas,  the  provision  is  that  "no  verbal  promise 
or  acknowledgment  shall  be  deemed  sufficient  evidence  in  any 
action  founded  on  simple  contract,"  but  does  not  restrict  it  to  a 
writing  signed  by  the  debtor  himself;  a  similar  provision  exists 
in  Nebraska;  and  under  these  statutes  an  acknowledgment  by  an 
agent  is  sufficient.  In  all  these  statutes  there  is  a  provision  that 
saves  the  effect  of  a  part  payment  upon  the  statute  bar.  It  will 
be  observed  that  in  those  States  where  written  evidence  of  an 
acknowledgment  is  required  the  provisions  are  practically  the 
same  as  those  in  the  Stat.  9  Geo.  IV.,  c.  14.  In  all  of  them, 
except  Nevada,  the  effect  of  a  part  payment  is  left  the  same  as 
before   the  adoption  of   the  provision   as   to  written  acknowledg- 

other  cases  arising  upon  loose,  indefinite,  and  unguarded  verbal  admissions. 
Sigourney  v.  Drury,  14  Pick.  (Mass.)  387;  Moore  v.  Bank  of  Columbia,  6  Pet. 
(U.  S.)  86.(rt) 

(a)  The    clause    in    this    act,    unless  13  of  the  Mercantile  Law  Amendment 

such  acknowledgment  shall    be  made  Act  enabled  such  an  acknowledgment 

or  contained   by  or   in  some  writing  to  to  be  made  by  a  writing  signed  by  a 

be    signed     by    the     party    chargeable  dulv    authorized    agent.     In   re   Mac- 

thereby.  was  construed   In   England  to  donald,  [1897]  2  Ch.  1. 
mean  a  personal  signature;  but  section 


232  STATUTES    OF    LIMITATION.  [CHAP.   VIII. 

ments;  but  in  that  State  there  is  no  saving  clause  in  this  respect, 
and  a  part  payment,  unless  evidenced  by  a  writing  under  the 
hand  of  the  party  to  be  charged,  is  not  admissible.1  In  New- 
Hampshire,  Connecticut,  Rhode  Island,  Colorado,  Delaware, 
Florida,  Kentucky,  Pennsylvania,  Maryland,  and  Tennessee,  no 
provision  exists  requiring  an  acknowledgment  or  new  promise  to 
be  in  writing. 

SEC.  84.  Effect  of  Statutes  requiring  a  Writing.  —  The  effect 
of  the  provision  in  the  various  statutes  requiring  an  acknowledg- 
ment or  promise  to  be  in  writing,  in  order  to  remove  the  bar  of 
the  statute  simply  renders  a  writing  necessary  as  a  means  of 
proof,  and  does  not  effect  any  alteration  in  the  legal  construction 
to  be  put  upon  such  acknowledgments  or  promises.2  (a)  It  appears 
also  that  the  words  "  promise  "  and  "  acknowledgment  "  in  the 
statute  mean  the  same  thing.3  The  terms  of  a  lost  acknowledg- 
ment in  writing  may  be  proved  and  the  acknowledgment  sup- 
ported by  parol  evidence.4 

1  Wilcox  v.  Williams,  5  Nev.  206. 

'  Haydon  v.  Williams,  7  Bing.  163;  Godwin  v.  Culley,  4  H.  &  N.  373.  See 
Moore  v.  Columbia  Bank,  6  Pet.  (U.  S.)  86;  Sigourney  v.  Drury,  14  Pick.  (Mass.) 
389;  Dickenson  v.  Hatfield,  5  C.  &  P.  46.  Where  the  statute  requires  that  an 
arknowledgment  or  new  promise  shall  be  in  writing,  a  verbal  acknowledgment 
of  the  correctness  of  an  account,  although  it  may  have  the  effect  of  making  it 
an  account  stated,  w'll  not  suspend  or  repeal  the  statute.  Floyd  v.  Pearce,  57 
Miss.  140.  And  in  Mississippi  even  a  written  promise  to  pay  part  of  a  debt, 
without  any  promise  to  pay  the  balance,  as  "  I  am  going  to  Aberdeen  to-morrow 
and  will  send  fifty  dollars,  which  is  all  I  can  spare  at  present,"  is  held  not  a 
sufficient  acknowledgment  of  the  debt  to  take  it  out  of  the  statute.  Eckford  v. 
Evans.  56  Miss.  18.  It  is  also  held  in  that  State  that  from  the  mere  fact  of  part 
payment  the  jury  are  not  authorized  to  infer  a  promise  to  pay  the  rest.  Smith 
v.  Westmoreland,  12  S.  A  M.  (Miss.)  663;  Davidson  v.  Harrison,  33  Miss.  41. 
In  no  case  can  a  part  payment  that  is  enforced  by  law  be  treated  as  sufficient 
to  remove  the  statute  bar.  Davies  v.  Edwards,  15  Jur.  1044.  But  in  Fiske  v. 
1 1 i I) bard,  45  N.  Y.  Super.  Ct.  331,  a  letter  from  a  debtor  to  a  creditor  as  follows: 
"  I  am  aware  that  I  owe  you,  for  money  borrowed.  As  you  have  the  figures, 
I  wish  you  would,  at  your  leisure,  make  out  a  statement  of  what  you  consider 
my  indebtedness  to  you,  and  send  it  to  me,  resting  assured  that  in  all  money 
matters  I  want  to  act  honestly  towards  everybody, "  was  held  sufficient  as  an 
acknowledgment  of  whatever  indebtedness  actually  existed  at  the  time  it  was 
mi  I  !, 

Ilaydon  v,  Williams,  supra. 

*  Godwin  v.  Culley,  supra. 

(n)  See  Chase  v.  Trafford,  116  Mass.  not  apply  to  a  promise  to  pay  a  mort- 
52'j.  531;  Kreba  v.  Olmstead,  137  Mass.  gage  in  consideration  of  its  discharge. 
504       The   Massachusetts  statute  docs     Devinc  v.  Murphy,  168  Mass.  24Q. 


§  85.]  ACKNOWLEDGMENTS   IN    WRITING.  233 

SEC.  85.  Sufficiency  of.  Instances.  —  Under  these  statutes 
any  writing,  signed  by  a  defendant,  admitting  that  a  debt  is  due 
and  unpaid,  whether  under  a  bond,  deed,  or  simple  contract, 
will  revive  the  remedy  upon  the  contract  or  obligation,  although 
there  is  not  upon  its  face  any  express  promise  to  pay  it ; '  but 
there  must  be  upon  the  face  of  the  writing  enough  to  warrant 
the  implication  of  a  promise  to  pay,2  as  if  the  words  used  are 
simply  "IOU  £275,"  that  is  sufficient,  because  from  the  abso- 
lute acknowledgment  of  a  debt,  unaccompanied  by  any  qualify- 
ing observations,  a  promise  to  pay  on  request  may  be  inferred.3 
If,  however,  there  is  anything  on  the  face  of  the  instrument  to 
repel  the  inference  of  a  promise  to  pay,  the  rule  expressum  facit 
cessare  taciturn  applies;  no  promise  will  be  inferred,  and  the 
acknowledgment  will  not  enable  the  plaintiff  to  ground  an  action 
thereupon.  Any  admission  of  a  liability  which  stops  short  of  an 
admission  of  a  debt  being  due  at  the  time  of  the  making  of  the 
admission  will  not  suffice  for  the  maintenance  of  an  action,  such 
as  a  letter  saying,  "  Doubtless  I  did  owe  the  money,  but  I  have 
already  paid  it;"4  or,  "I  admit  the  debt,  but  I   have  got  a  set- 

1  Linsell  v.  Bonsor,  2  Bing.  N.  C.  241.  In  Manchester  v.  Braedner,  107  N.  Y. 
346,  it  was  held  that  an  order  on  a  third  person  to  pay  a  specified  sum  to  the 
payee,  means  that  the  drawee  is  indebted  to  the  drawer,  and  the  latter  is 
indebted  to  the  payee  in  the  sum  specified,  and  that  it  was  given  to  the  payee  as 
the  means  of  paying  or  securing  the  payment  of  his  debt,  and  is  an  acknowl- 
edgment in  writing  by  the  former  of  a  debt  within  the  statute  of  limitations; 
and  that  the  writing  must  acknowledge  an  existing  debt,  and  must  contain  noth- 
ing inconsistent  with  an  intention  on  the  pari  of  the  debtor  to  pay,  though  oral 
evidence  may  be  resorted  to  in  aid  of  the  interpretation. (a) 

*  Evans  v.  Simon,  9  Exch.  285. 

3  Smith  v.  Thorne,  supra;  Dobbs  v.  Humphrey,  10  Bing.  449.  In  Mills  v. 
Davis,  113  N.  Y.  243,  41  Hun,  415,  it  was  held  as  against  a  promissory  note, 
payable  on  demand  with  interest,  that  the  statute  begins  to  run  at  its  da'.e; 
payment  may  be  proved  by  oral  evidence;  an  indorsement  upon  a  promissory 
note  of  part  payment  made  by  the  holder,  without  the  privity  of  the  maker,  to 
be  competent  as  evidence  to  meet  the  defense  of  the  statute,  must  appear  to 
have  been  made  at  a  time  when  its  operation  would  be  against  the  interest 
of  the  party  making  it,  and  before  the  statute  could  have  operated. (b) 

4  Bryan  v.  Horseman,  5  Esp.  81;  Birk   v.  Guy,  4  id.  184. 

(a)  So  two  letters  may  be  connected  by  the  debtor,  by  way  of  compromise, 

together  by  parol  evidence  in  order  to  for    less    than    is    demanded     by    his 

show  an  acknowledgment  in   writing,  creditor,  who  refuses  it.  is  not  such  an 

McGuffie  v.  Burleigh,  78  L.  T.  264.     In  acknowledgment  in  writing.     Healon 

New    York,    where    by    the  Codes  the  v.  Leonard,  69  Hun,  423. 

acknowledgment  is  now  required  to  be  {0)  See  infra,  §  105,  n.  (a). 
in  writing,  a  check  signed  and  offered 


234  STATUTES   OF   LIMITATION.  [CHAP.  VIII. 

off;"  or,  "The  debt  is  barred  by  the  statute  of  limitations."1 
If  a  man  admits  that  a  signature  to  a  bill  or  note,  or  other  con- 
tract in  writing,  is  his  signature,  but  at  the  same  time  says  it  was 
never  worth  anything,  and  that  he  was  never  liable  upon  the  con- 
tract, this  is  not  an  admission  or  acknowledgment.2  If  the 
defendant  says,  in  writing,  "  I  admit  the  debt."  that  is  enough; 
but  if  he  says,  "  I  admit  the  debt,  but  I  have  not  made  up  my 
mind  to  pay,"  or,  "I  owe  the  money,  but  I  cannot  tell  when  or 
how  I  am  to  pay  it,"  or  "I  do  not  intend,  or  cannot  afford,  to 
pay  the  debt,"  such  an  acknowledgment  negatives  the  inference 
of  a  promise  to  pay,  and  will  not  consequently  revive  the  cause 
of  action.3  The  making  and  signing  of  a  promissory  note  by  the 
debtor,  and  tendering  it  to  the  creditor  for  the  amount  of  the 
debt,  or  in  lieu  of  another  note,  if  not  accepted  by  the  creditor, 
is  not  such  a  promise  in  writing  as  takes  the  debt  out  of  the  stat- 
ute;4 nor,  indeed,  under  any  circumstances  can  any  paper,  exe- 
cuted by  the  debtor  but  not  delivered  to  the  creditor,  have  the 
effect  to  remove  the  statute  bar,5  unless  it  is  executed  and  used 
by  the  debtor  in  such  a  way  as  to  show  that  he  intended  it  as  a 
recognition  of  the  debt,  upon  the  faith  of  which  the  creditor 
might  rely,  so  as  to  estop  him  from  setting  up  the  statute;6  the 
insertion  of  a  debt  in  a  schedule  of  debts  owing  by  an  insolvent 
debtor,  filed  and  sworn  to  by  him  in  proceedings  in  insolvency, 
does  not  operate  as  an  acknowledgment  of  the  debt  as  a  subsist- 
ing liability  against  him  so  as  to  remove  the  statutory  bar;7  and 

1  Swan  v.  Sowell,  2  B.  &  Aid.  761;   Boydell  v.  Drummond,  2  Camp.  161. 
5  Rowcroft  v.  Lomas,  4  M.  &  S.  459. 

3  Brigstocke  v.  Smith,  1  C.  M.  R.  483;  A'Court  v.  Cross,  3  Bing.  329. 

4  Smith  v.  Eastman,  3  Cush.  (Mass.)  355  See  also  Sumner  v.  Sumner,  1  Met. 
(Mass.)  304,  where,  after  the  debtor  had  made  and  delivered  to  the  creditor  a 
new  note  in  lieu  of  one  already  barred  by  the  statute,  the  creditor  delivered  up 
the  note  to  the  debtor  again  for  the  purpose  of  putting  all  the  creditors  in  statu 
quo,  it  was  held  that  the  last  note  did  not  operate  as  a  new  promise  in  writing 
so  as  to  remove  the  statute  bar;  but  it  was  intimated  by  the  court  that  the  rule 
would  be  otherwise  if  the  note  had  been  merely  delivered  up  to  the  debtor  for 
the  purpose  of  leaving  the  question  of  the  amount  open,  and  not  the  question 
of  th  ■    1    litor's  indebtedness. 

s  Allen  v.  Walton,  70  Mo.  138;  Edwards?/.  Culley,  4  H.  &  N.  378;  Merriam  v. 
Leonard,  6  Cush.  (Mass.)  151. 

8  Dinguid  v.  School  field,  32  Gralt.  (Va.)  803. 

1  Richardson  ?•.  Thomas,  13  Gray  (Mass.)  381;  Roscoe  v.  Hale,  7  id.  274; 
Stoddard  v.  Doane,  7  id.  387. 


§86.]  ACKNOWLEDGMENTS    IN   WRITING.  235 

the  acknowledgment  must  be  made  to  the  creditor  in  person,  or 
his  agent  or  legal  representative.! a) 

SEC.  86.  Acknowledgment  must  clearly  refer  to  the  Particular 
Debt.  —  The  acknowledgment,  etc.,  in  writing,  required  by 
these  statutes,  must  clearly  relate  to  the  debt  in  suit,  and  must 
be  such  that  a  promise  to  pay  the  debt  can  be  implied;1  and 
where  a  letter  from  the  debtor  was  relied  upon,  which  merely 
stated,  "  My  brother  says  you  are  intending  to  send  to  me.  As 
I  do  not  recollect  the  date  or  the  amount  of  the  indorsements,  I 
would  thank  you  to  send  me  a  statement  of  it.  I  have  been 
expecting  to  visit  you  for  some  time  past.  After  hearing  from 
you,  if  I  should  not  be  able  to  visit  you  soon,  I  will  write  again," 
it  was  held  not  sufficient,  because  it  did  not  identify  the  note,  or 
amount  to  a  promise  to  pay  it.2     And  where  the  debtor  wrote 

1  Wells  v,  Wilson,  140  Penn.  St.  145.  A  declaration  of  an  intention  10  pay  a 
debt  is  not  equivalent  to  a  promise  to  pay  it.  Lowrey  v.  Robinson,  141  id.  189. 
See  also  Davis  v.  Noyes,  15  N.  Y.  Sup.  431;  Wambold  v.  Hoover,  no  Penn.  St.  9. 

'  Gibson  v.  Grosvenor,  4  Gray  (Mass.)  606.  In  Leigh  v.  Lithecum,  30  Tex. 
100,  a  letter  as  follows,  "  You  said  something  about  a  note  you  have.  You  are 
apprised  I  have  an  offset,  etc.  When  I  see  you  we  will  adjust  the  matter,  and 
whatever  is  due  on  the  note  I  will  pay,"  of  itself,  in  the  absence  of  any  other 
evidence  to  apply  it  to  the  note  in  suit,  was  held  insufficient;  but  the  rule  gen- 
erally adopted  is  that,  if  the  writing  is  indefinite  as  to  the  debt  in  question, 
parol  evidence  is  admissible  to  explain  il,  as  any  other  latent  ambiguity.  In 
Hussey  v.  Kirkman.  95  N.  C.  63,  where  the  intestate  admitted  to  a  third  person 
that  he  owed  a  note  of  about  sixty  dollars,  which  was  just  and  due,  and  he 
intended  to  pay  it  if  he  over  got  well  enough,  the  court  said:  "  The  trouble  is 
that  no  note  has  been  produced,  nor  its  contents  shown,  to  which  the  admissions 
can  be  attached,  so  as  to  admit  of  identification."  In  Faison  v.  Bowden,  72  N. 
C.  405,  where  the  testator  said  to  the  plaintiff,  "  I  can't  pay  you  what  I  owe 
you,  but  I  will  pay  you  soon,  or  next  winter.  I  need  what  money  I  have  now 
for  building,  and  it  will  do  you  more  good  to  get  it  in  a  lump,"  and  the  testator 
owed  the  plaintiff  for  medical  services,  running  over  a  period  from  the  begin- 
ning of  1854  to  his  death,  in  November,  1861,  and  the  recognition  of  the  debt 
was  relied  on  to  remove  the  bar  as  to  the  whole  account,  it  was  held  to  be 
insufficient.  The  following  in  a  letter  from  the  debtor  to  his  creditor,  — "  You 
shall  be  paid  as  I  get  the  money  over  and  above  my  bread  and  meat;  "  "  If  I 
get  the  money,  I  will  then  pay  you;  "  "  I  have  acknowledged  the  debt  to  you 
in  my  letters  again  and  again,  and  therefore  it  stands  as  good  as  if  you  had  mv 
bond,"  —  are  sufficient,  as  the  last  expression  clearly  shows  that  the  debtor  did 
nol  intend  to  confine  the  creditor  to  the  source  indicated  in  the  first  expressions 

(a)  That  a  letter  typewritten  by  a  acknowledgment  in  writing,  see  In  re 
stenographer,  a  rubber  stamp  being  Deep  River  Nat.  Bank  (Conn.),  47  Atl. 
used  for  the  signature,  is  a  sufficient     675. 


236  STATUTES   OF   LIMITATION.  [CHAP.   VIII. 

the  creditor  as  follows:1  "  Next  week  I  shall  be  able  to  send  in 
to  C.  T.  a  statement  of  my  affairs.  He  will  show  you  the  whole 
of  my  property,  and  ask  for  a  discharge.  I  should  have  done 
this  before,  but  have  been  obliged  to  work  for  my  board.  I  have 
large  demands,  etc.,  but  I  cannot  collect  them,  and  think  I  never 
shall,"  it  was  held  not  sufficient  to  take  the  debt  out  of  the  stat- 
ute.2    A  letter  in  which  the  debtor  stated,  "  I  feel  ashamed  of  it 

for  payment,  but  intended  an  unqualified  acknowledgment  of  the  debt,  from 
which  an  unqualified  promise  to  pay  is  fairly  inferred.  Abrahams  v.  Swann,  18 
W.  Va.  274,  41  Am.  Rep.  692.  A  statement  of  a  debtor  that  he  "  will  try  to  do 
a  portion  of  it  "  will  not  remove  the  statute  bar.  Denny  v.  Marrelt,  29  Minn. 
361.  A  declaraiion  of  an  intention  to  pay,  is  not  equivalent  to  a  promise  to 
pay.  Lowrey  v.  Robinson,  141  Penn.  St.  189.  A  clear  and  unambiguous 
acknowledgment  of  a  debt  as  an  existing  obligation,  consistent  with  a  promise 
to  pay,  will  remove  the  statute  bar.  Wells  v.  Wilson,  140  Penn.  St.  645;  Russ 
v.  Cunningham,  16  S.  A.  (Texas)  44.6;  Woodlief  v.  Bragg,  108  N.  C.  571;  but 
such  acknowledgments  must  be  clear  and  unequivocal,  Union  National  Bank 
v.  Evans,  43  La.  Ann.  372,  and  consistent  with  a  promise  to  pay  it  in  all  events. 
In  re  Perry's  Est.,  15  N.  Y.  Sup.  535;  Smith  v.  Camp,  58  Kun  (N.  Y.)  434;  Stout 
v.  Marshall,  75  Iowa,  498;  Royster  v.  Granville  Co.,  98  N.  C.  148;  Gathrighl  z>. 
Wheat,  70  Texas,  740;  Lange  v.  Caruthers,  70  Texas,  718;  Holberg  v.  Jaffray, 
65  Miss.  526;  Ashby  v.  Washburn,  23  Neb.  571;  Chidsey  v.  Powell,  91  Mo,  622; 
Croman  v.  Stull,  119  Penn.  St.  91;  Hostetter  v.  Hollinger,  117  Penn.  St.  60G. 
And  where  this  condition  exists  the  statute  bar  is  removed.  Morgan  v. 
Ramlands,  L.  R.  7  Q.  B.  493:  Holt  v.  Gage,  60  N.  H.  536;  Green  v.  Coos,  etc., 
Co.,  23  Fed.  Rep.  67;  Schaeffer  v.  Hoffman,  113  Penn.  St.  1;  Shepherd  v. 
Thompson,  122  U.  S.  231;  Mitchell's  Case,  L.  R.  6  Ch.  822;  Foster  v.  Smith,  52 
Conn.  440;  Ralfe  v.  Pillaud,  16  Neb.  21 ;  Devereaux  v.  Henry,  16  id.  55,  Black 
v.  Reynold,  3  Harr.  (Del.)  528;  Stewart  v.  Garrett,  65  Md.  392;  Mastin  v.  Bran- 
ham,  86  Mo.  642;  Stansbury  v.  Stansbury,  20  W.  Va.  23;  Webster  v.  Newbold, 
41  Penn.  St.  482;  Yost  v.  Grim,  116  id.  527;  Weston  v.  Hodgkins,  136  Mass. 
326;  Pierce  v.  Seymour,  49  Wis.  94;  Switzer  v.  Noffsinger,  82  Va.  518;  Lawson 
v.  McCartney,  104  Penn.  St.  356. 

1  Bailey  v.  Crane,  21  Pick.  (Mass.)  323.  In  Chapman  v.  Barnes,  93  Ala.  433, 
it  was  held  that  an  acknowledgment  contained  in  a  letter  which  does  not  mention 
the  amount  of  the  debt,  and  merely  tells  the  creditor  "  if  he  needs  more  "  to 
call  for  it,  and  he  shall  have  it,  does  nol  constitute  such  a  promise  as  will 
remove  the  bar  of  the  statute;  and  a  promise  shown  by  a  letter  which,  while  it 
mentions  the  amount  of  the  debt  specifically,  merely  states  that  the  debtor 
expects  to  pay  in  a  year,  or  proposes  to  turn  over  property  to  satisfy  the  debt. 
was  held  insufficient  to  remove  the  statutory  bar.  See  Miller  v.  Basehore,  83 
Penn.  St.  356,  Landis  v.  Roth,  109  id.  621;  Scott  v.  Ware,  64  Ala.  174;  Min- 
niece  v.  Jeter,  65  id.  222;  Grimball  v.  Mastin,  77  id.  553. 

'  In  Harvey  v.  Tobey,  15  Pick.  (Mass.)  99,  where  the  debtor,  some  time  after 
the  note  in  suit  became  due,  assigned  his  property  in  trust  for  such  of  his 
creditors  as  should  become  parties  to  the  indenture,  and  the  creditors  covenanted 
to  discharge  him   from  all  claim  or  demand,  action  or  right  of  action,  for  the 


§  87. J  ACKNOWLEDGMENTS   IN   WRITING.  237 

standing  so  long,"  was  held  insufficient.1  The  constant  replica- 
tion ever  since  the  statute  to  let  in  evidence  of  an  acknowledg- 
ment is  that  the  cause  of  action  accrued  or  that  the  defendant 
made  the  promise  in  the  declaration  mentioned  within  the  six 
years;  and  the  only  principle  upon  which  it  can  be  held  to  be  an 
answer  to  the  statute  is,  that  an  acknowledgment  is  evidence  of 
a  new  promise,  and  as  such  constitutes  a  new  cause  of  action, 
and  supports  and  establishes  the  promise  which  the  declaration 
states.  Upon  this  principle,  whenever  the  acknowledgment  sup- 
ports any  of  the  promises  in  the  declaration,  the  plaintiff  suc- 
ceeds ;  when  it  does  not  support  them,  though  it  may  show  clearly 
that  the  debt  never  has  been  paid,  but  is  still  a  subsisting  debt, 
the  plaintiff  fails2,  (a)  The  replication  in  those  States  where  a 
written  acknowledgment  is  required  must  now  specify  that  the 
acknowledgment  was  in  writing,  signed  by  the  debtor.3 

Sec.  87.  Distinction  between  Absolute  and  Qualified  promises, 
&c.  Illustrations.  —  When  the  plaintiff's  declaration,  as  is  usu- 
ally the  case,  is  framed  on  the  original  absolute  promise  to 
pay  on  request,  any  writing  signed  by  the  party  within  six  years 
of  the  commencement  of  the  action,  showing  an  express  or 
implied  absolute  promise  to  pay  the  debt,  or  satisfy  the  claim, 
will  suffice  to  sustain  the  action.4  But  when  the  defendant  's 
promise  to  pay  is  qualified  and  conditional,  the  condition  must 
be  shown  to  be  accomplished,  and  the  promise  to  have  become 
absolute,  so  as  to  support  the  absolute  promise  laid  in  the  declara- 

space  of  seven  years,  upon  receiving  their  respective  portions  of  the  property 
and  the  plaintiff  executed  the  indenture,  it  was  held  that  it  did  not  suspend  the 
statute  or  keep  the  debt  on  foot.     See  also  Smith  v.  Eastman,  suj>ra.(b) 

1  Wilcox  v.  Williams,  5  Nev.  206. 

'  Tanner  v.  Smart,  6  B.  &  C.  606. 

3  Forsyth  v.  Bristowe,  8  Exch.  716. 

4Leaper  v.  Tatton,  16  East,  420;  Upton  v.  Else,  12  Moore,  304. 

(a)  Under   ihe   Mass.  Pub.   Stats.,  c.  the  new  promise  is  the  old  debt,  and  is 

197,  §  15,  by  which  a  new  promise  to  sufficient.       Interstate  Building  Ass'n 

pay  a  debt  barred  by  limitation  must  v.  Goforth  (Texas),  59  S.  W.  871;   Poin- 

be  in  writing,  a  contract,  founded  on  dexter   v.    Rawlings  (Tenn.),    id.    766; 

a  good  consideration,  to  pay  a  barred  Bowman  v.  Rector  (Tenn.),  id.  389. 

debt  need  not  be  in  writing.     Graham  {b)  That  insolvency  does  not  suspend 

v.  Stanton,  177  Mass.  321.     SeeGilling-  the     statute    of     limitations,     see    46 

ham  v.  Brown,  60  N.  E.  122.     The  re-  Central  L.  J.  493;  Re  St.  Paul  German 

newal  of  a  debt  barred  by  limitation  is  Ins.  Co.  (Minn.),  26  L.  R.  A.  737,  n. 
a  new  contract;  the  consideration  for 


238  STATUTES    OF    LIMITATION.  [CHAP.   VIII. 

tion.1  The  amount  of  the  debt  maybe  shown  by  parol,  and  need 
not  appear  upon  the  face  of  the  writing;2  and  if  the  defendant 
admits  the  debt,  but  objects  to  the  amount  claimed,  the  law  will 
infer  from  the  admission  a  promise  to  pay  what,  upon  investi- 
gation, shall  appear  to  be  due ;  and  the  admission,  consequently, 
will  give  rise  to  a  cause  of  action,  and  be  a  bar  to  the  statute.* 
The  following  letters  and  writings  have  been  held  not  to  be  suffi- 
cient to  bar  the  statute:  "I  am  in  daily  expectation  of  being 
enabled  to  give  a  satisfactory  reply  respecting  the  demand  of 
Messrs.  Morrell  against  me."4  "I  will  see  Davis;  I  have  no 
doubt  he  has  paid  it;  if  by  chance  he  has  not  paid  it,  it  is  very 
fit  it  should  be."5  "I  have  now  a  hope  that  before  a  week  I 
shall  have  it  in  my  power  to  pay  a  portion  of  the  debt,  when  we 
shall  settle  about  the  liquidation  of  the  balance."  6  "  Plaintiff's 
claim,  with  that  of  others,  shall  receive  the  attention  that,  as  an 
honorable  man,  I  consider  them  to  deserve;  it  is  my  intention  to 
pay  them,  but  I  must  be  allowed  time  to  arrange  my  affairs,  and  if 

1  am  proceeded  against,  any  exertion  of  mine  will  be  rendered 
abortive."7  "I  give  the  above  accounts  to  you,  so  you  must 
collect  them,  and  pay  yourself,  and  you  and  I  will  then  be 
clear."8  "I  have  hitherto  deferred  writing  to  you  regarding 
your  demand  upon  me,  in  consequence  of  some  family  arrange- 
ments, through  which  I  should  be  enabled  to  discharge  your 
account.  I  have  now  the  satisfaction  to  inform  you  that  an 
appointment  of  sufficient  funds  has  been  made,  for  the  purpose 
of  which  H.  Y.  is  one  of  the  trustees,  to  whom  I  have  given  in  a 
statement  of  your  account,  amounting  to  £98  8s.  6d.  Some  time 
must  elapse  before  the  trustees  can  be  in  cash  to  make  these 
payments,    but  I  have  Mr.    Y's  authority  to  refer  you  to  him 

1  Parke,  B.,  in  Humphreys  v.  Jones,  14  M.  &  W.  3;  Waters  v.  Earl  of  Thanet, 

2  Q.  B.  759;  Edmunds  v.  Downes,  2  Cr.  &  M.459;  Haydon  v.  Williams,  7  Bing. 
167;   Irving  v.  Veitch,  3  M.  &  W.  112. 

s  Williams  v.  Griffith,  3  Exch.  335,  and  the  identity  of  the  debt  may  be  shown 
by  parol,  Abrahams  v.  Swann,  18  W.  Va.  274. 

3  Gardner  v.  M'Mahon,  3  Q.  B.  561;  Cheslyn  v.  Dalby,  4  Y.  &  C.  238. 

4  Morrell  v.  Frith,  3  M.  &  W.  403. 

'-  Poynder  v.  Bluck,  5  Dowl.  P.  C.  570 

6  Hart  v.  Prendergast,  14  M.&  W.  741.     But  see  Edmonds  v.  Goater,  21  Law 
J.  Ch    290. 

1  Fearn  v.  Lewis,  6  Bing.  349. 

•  Routledge  v.  Ramsay,  8  Ad.  &  El.  221. 


§  88.]  ACKNOWLEDGMENTS    IN    WRITING.  239 

for  any  further  information."  '  "Bring  the  bill;  I  shall  be  at 
your  service."  "Send  me  your  account.  If  it  is  just,  I  will 
settle  it. "2  "I  hereby  charge  my  reversionary  interest,  when 
the  same  shall  fall  into  possession  and  be  rendered  available  to 
my  use,  with  the  payment  of  £108  8s.  9d.  to  Mr.  Martin,  to 
carry  lawful  interest."  3  I  am  much  surprised  at  receiving  a  let- 
ter this  morning  for  the  recovery  of  your  debt.  I  candidly  tell 
you,  once  for  all,  I  shall  never  be  able  to  pay  you  in  cash,  but 
you  may  have  any  of  the  goods  we  have  at  the  Pantechnicon  by 
paying  the  expenses  incurred  thereon."  4  An  agreement  in  writ- 
ing, which  does  not  acknowledge  a  debt,  or  contain  a  promise  to 
pay  the  same,  except  upon  failure  to  produce  a  certain  receipt, 
and  which  expresses  no  consideration,  has  been  held  insufficient 
to  remove  the  statutory  bar;5  the  rule  in  all  cases  being  that, 
where  a  promise  is  conditional,  there  can  be  no  recovery  unless 
the  condition  is  fulfilled,  or  there  is  a  new  and  sufficient  consid- 
eration for  the  promise.6  In  cases  of  this  character  no  promise 
can  be  implied,  because  there  is  an  express  denial  of  liability ;  and 
the  debtor  is  entitled  to  the  whole  statutory  period  in  which  to 
produce  his  receipt. 

SEC,  88.  Promise,  &c.,  must  be  definite.  Amount  need  not  be 
stated.  —  In  Georgia,  where  in  order  to  establish  a  suspension  of 
the  statute,  the  plaintiff  introduced  a  letter  from  the  defendant 
as  follows:  "Gentlemen,  —  In  reply  to  your  favor  of  the  22d 
instant,  you  will  please  to  withdraw  your  draft  of  $314.37  on  me, 
as  I  cannot  pay  for  the  present.  As  soon  as  I  have  the  money, 
I  shall  remit;"  it  was  held  too  indefinite  to  avoid  the  statutory 
bar  as  against  the  account,  or  to  sustain  an  action.7  And,  gen- 
erally, in  the  case  of  written  acknowledgments,  as  of  parol,  the 
new  promise  must  be  direct  and  positive;  and  if  it  is  dependent 
upon  an  acknowledgment,  the  acknowledgment  must  be  unquali- 
fied, of  a  subsisting  debt,  which  the  debtor  is  liable  and  willing 
to  pay.8     The  exact  amount  of  the   indebtedness  need   not   be 

1  Whippy  v.  Hillary,  3  B.  &  Ad.  399,  5  C.  &  P.  209. 
'  Spong  v.  Wright,  9  M.  &  W.  629. 

*  Martin  v.  Knowles,  1  N.  &  M.  422. 
4Cawley  v.  Furnell,  20  Law  J.  C.  P.  197. 
*Aldrete  v.  Demitt,  32  Tex.  575. 

•  Price  v.  Price,  34  Iowa,  404. 
'Sedgwick  v.  Gerding,  55  Ga    264. 

8Senseman  v.  Hershman,  82  Penn.  St.  83;  Otterback  v.  Brown,  2  MacArthur 


24O  STATUTES    OF    LIMITATION.  [CHAP.   VIII. 

stated.  If  the  debt  is  identified,  the  amount  may  be  left  open 
for  future  adjustment,  or  may  be  proved  by  parol.1  The  mere 
mention  of  an  indebtedness,  without  questioning  it,  is  not  suffi- 
cient;2 nor  is  a  mere  request  for  delay,  without  stipulating  any 
time  for  indulgence;3  nor  is  the  fact  that  one  co-debtor  has  suf- 
fered a  judgment  by  default  upon  the  joint  debt  to  be  entered 
against  him,  such  an  acknowledgment  as  will  remove  the  statute 
bar  against  his  co-debtor.4 

SEC.  89.  Instances  of  Sufficient  Acknowledgments.  —  The  fol- 
lowing acknowledgments,  on  the  other  hand,  importing  a  prom- 
ise to  pay  the  debt  or  satisfy  the  claim,  have  been  held  sufficient 
acknowledgments  within  the  statutes:  "I  am  wretched  on 
account  of  your  not  being  paid  ;  there  is  a  prospect  of  an  abundant 
harvest,  which  must  reduce  your  account;  if  it  does  not,  the 
concern  must  be  broken  up  to  meet  it."  5  "  The  demand  is  not 
a  just  one,  but  I  am  ready  to  settle  the  account  *  *  *  I  am 
not  in  his  debt  £90;  shall  be  happy  to  settle  the  difference."6 
"  I  am  ready  to  put  it  out  of  my  power  to  take  advantage  of  the 
limitation  act,  and  will  immediately  give  you  my  note  for  what- 
ever is  due  to  you."7  "Your  account  is  quite  correct,  and  O! 
that  I  were  now  going  to  inclose  you  the  amount  of  it."  8  If,  in 
an  account  rendered,  there  are  two  perfectly  distinct  items,  not 
in  any  way  connected  together,  and  forming  no  part  of  one  con- 
tinuous transaction,  a  signed  acknowledgment  as  to  one  of  them 

U.  S.  C.  C.)  541;  Miller  v.  Baschore,  83  Perm.  St.  356.  It  must  be  made  lo  the 
party  seeking  its  benefit,  or  to  some  one  authorized  to  act  for  him,  and  without 
protest  or  claim  of  set-off.     Teessen  v.  Camblin,  1  111.  App.  424. 

'  Hart  v.  Boyd,  54  Miss.  547.  In  Canton  Female  Academy  v.  Gilman,  55 
Miss.  148,  a  letter  as  follows,  "  It  would  suit  my  convenience  to  execute  my 
note  for  the  balance  due  for  rent,  payable  Jan.  1,  1877,"  was  held  too  indefinite 
proof  of  an  acknowledgment  of  the  debt  to  take  it  out  of  the  statute. 

•  Hanson  v.  Towle,  19  Kan.  273. 

3  Cook  v.  Cook,  10  Heisk.  (Tenn.)  664.  But  see  Bloom  v.  Kern,  30  La. 
Ann.  Part.  II.  1207,  where  a  letter  of  that  kind  was  held  sufficient,  not 
only  to  take  the  note  out  of  the  statute  as  to  the  principal,  but  also  as  to  the 
surety. 

4  Lane  7/.  Richardson,  79  N.  C.  159.  Nor  will  a  promise  by  one  joint  debtor 
remove  the  bar  as  to  the  other.     Campbell  v.  Brown,  86  N.  C.  376. 

Bird  v.  Gammon,  3  Bing.  N.  C.  883. 
6Colledge  v.  Horn,  3   Bing.  119. 
1  Gardner  v.  M'Mahon,  3  Q.  B.  561. 
'  Dodson  v.  Mackey,  B  Ad.  X-  El.  225. 


§&  9°-92-  I  ACKNOWLEDGMENTS   IN   WRITING.  241 

will  not  take  the  other  out  of  the  operation,  of  the  statute.1 
Where  a  written  acknowledgment  of  the  debt,  signed  by  the 
debtor,  had  been  lost,  oral  evidence  of  the  contents  of  the  writ- 
ing and  of  the  making  of  the  acknowledgment  was  permitted  to 
be  given,  so  as  to  take  the  case  out  of  the  operation  of  the  statute.2 

SEC.  90.  Direction  in  a  "Will,  to  pay  Debts.  —  A  general  direc- 
tion by  a  testator  in  his  will,  that  all  his  just  debts  shall  be  paid, 
is  treated  as  applicable  only  to  those  liabilities  that  are  enforce- 
able by  legal  proceedings,  consequently  it  is  not  regarded  as  suffi- 
cient to  operate  as  a  waiver  of  the  defense  of  the  statute  of  limita- 
tions.3 But  specific  directions  to  pay  certain  claims  upon  which 
the  statute  had  run,  or  upon  which  it  was  running  when  the  will 
was  executed,  would  operate  as  a  waiver  of  the  statutory  bar, 
which  would  be  binding  upon  the  executor  and  all  others  inter- 
ested in  the  distribution  of  the  estate  to  the  extent  and  subject 
to  the  restrictions,  if  any,  put  thereon  by  the  testator.* 

SEC.  91 .  Debts  due  from  Corporations.  —  Where  a  debt  is  con- 
tracted by  an  officer  of  a  corporation,  as  such,  or  a  note  or  other 
obligation  is  executed  by  him  as  such,  a  payment  or  new  promise 
made  by  his  successors  in  that  office  will  keep  the  debt  on  foot 
and  save  it  from  the  operation  of  the  statute;5  and,  if  the  note  is 
so  executed  as  to  render  the  individuals  signing  it  personally 
liable  therefor,  the  question  whether  a  payment  made  thereon  by 
their  successors  in   office  was  not  authorized  by  them  is  for  the 

Jury- 

SEC.  92.  Entry  of  Debt  in  Schedule,  Deed,  &e.  —  Under  these 
statutes,  the  entry  of  a  debt  in  an  inventory  or  schedule  of  the 
debtor's  debts,  to  be  filed  in  insolvency  or  in  any  proceeding, 
when  the  act  is  voluntary,  is  held  sufficient  to  take  the  debt  out 
of  the  statute,  if  the  schedule  or  inventory  is  signed  by  the 
debtor,  but  not  otherwise  unless  it  is  made  a  part  of  another 
instrument  which  is  signed.6  Such  an  entry  would  not  be  suffi- 
cient even  though  sworn  to  unless  signed  by  the  debtor.      The 

1  Robarts  v.   Robarts,   1   M.  &   P.  489;   Rothery  v.  Munnings,  1  B.  &  Ad.  15; 
Phillips  v.  Broadley,  9  Q.  B.  744. 
*  Haydon  v.  Williams,  7  Bing.  163. 

3  Broxton  v.  Wood,  4  Gratt.  (Va.)  25;   Rush  v.  Fales,  1  Phila.  (Penn.)  463. 

4  Broxton  v.  Wood,  supra. 

*See  Jonas  v.  Hughes,  5  Exch.  104:   Rex  v.  Pettet,  r  Ad.  &  El.  19b. 
*Woodbridge  v.  Allen,  12  Met.  (Mass.)  470.     In  Smith  v.  Poole,  12  Sim.  17, 
("stats,  of  lim.  — 16] 


242  STATUTES   OF   LIMITATION.  [CHAP.   VIII. 

recital  in  a  mortgage  that  it  is  made  subject  to  a  prior  mortgage 
if  made  before  the  statute  has  run  thereon  does  not  suspend  the 
operation  of  the  sttute  and  start  it  afresh  from  the  date  of  such 
recital ; '  but  such  a  recital  in  a  mortgage  made  after  the  statute 
has  run  upon  a  previous  mortgage  renews  the  prior  mortgage  and 
gives  it  a  new  period  of  life  from  the  date  of  the  mortgage  in 
which  such  recital  is  contained.2  In  order  to  operate  as  a  renewal 
of  a  debt  upon  which  the  statute  has  run  the  writing  in  which 
the  acknowledgment  or  new  promise  is  contained  must  either 
have  been  delivered  to  the  creditor  or  to  some  person  acting  for 
him  or  deposited  in  some  public  office  where  it  can  be  said  to 
have  been  deposited  with  the  intent  and  purpose  that  the  creditor 
should  rely  upon  it  to  keep  his  debt  on  foot.3  The  mere  fact  that 
the  debtor  made  a  written  acknowledgment  of  the  debt  or  prom- 
ise to  pay  it  even  which  he  retained  and  which  was  never  deliv- 
ered to  the  creditor  will  not  operate  to  repeal  the  statute  as  to 
such  debt.4 

SEC.  93.  Sufficiency  of,  for  the  Court,  except.  —  The  question 
whether  a  written  acknowledgment  is  sufficient  to  amount  to  an 
absolute  promise  to  pay  is  a  question  for  the  court,  and  should 
not  be  submitted  to  the  jury.5  Where,  however,  a  document  of 
doubtful  construction  is  put  in  evidence  to  avoid  the  effect  of  the 
defendant's  plea,  and  has  to  be  explained  by  extrinsic  facts,  the 
question  is  for  the  jury.6 

where  an  action  was  brought  in  1835  on  a  note  upon  which  no  payment  had 
been  made  since  1823,  and  to  save  the  note  from  the  operation  of  (he  statute,  it 
was  proved  that  in  1832  the  administrator  of  the  maker  returned,  under  cita- 
tion, an  inveniory  and  account  of  the  debtor's  assets  and  liabilities,  in  which 
this  note  was  included,  it  was  held  sufficient. 

1  Palmer  v.  Butler,  36  Iowa,  576. 

5  Day  v.  Baldwin,  34  Iowa,  380. 

8  Dinguid  v.  Schoolheld,  32  Gratt.  (Va.)  803. 

4  Smith  v.  Eastman,  3  Cush.  (Mass.)  355;   Hughes  v.  Paramore,  35  Eng.  L.  & 

Eq.    195. 

5  Routledge  v.  Ramsay,  8  Ad.  &  El.  221;  Hancock  v.  Bliss,  7  Wend.  (N.  Y.) 
207;  Oliver  v.  Gtay,  1  H.  &  G.  (Md.)  204;  Clarke  v.  Dutcher,  9  Cow.  (N.  Y.)  674. 
W  ;re  the  defendant  said  that  it  was  impossible  for  him  to  pay  then,  but  that 
In  would  call  on  the  plaintiT  in  the  course  of  two  or  three  weeks  and  give  him 
all  the  satisfaction  he  could  desire,  the  effect  of  this  was  for  the  court,  and  not 
for  the  jury.  Mairee  v.  Magee,  10  Watts  (Penn.)  172;  Berghaus  v.  Calhoun,  6 
id.  2IQ. 

8  Morrell  v.  Frith,  3  M.  &  W.  402;  Snook  v.  Mears,  5  Price,  636. 


§§  94-95-]  ACKNOWLEDGMENTS    IN    WRITING.  243 

Sec.  94.  Must  be  signed  by  the  Debtor.  —  It  is  necessary, 
under  the  statutes  in  those  States  where  the  acknowledgment  is 
required  to  be  "in  writing  and  signed  by  the  party  chargeable 
thereby,"  that  the  instrument  relied  upon  as  an  acknowledg- 
ment should  bear  the  actual  signature  of  the  person  to  be  charged, 
and  the  circumstance  that  it  is  in  his  handwriting  does  not  give 
it  validity.1  In  one  case  it  was  held  that  where  the  debtor  wrote 
the  entire  instrument,  including  his  name,  at  the  top,  as  "I,  A. 
B.,"  etc.,  it  was  a  sufficient  signature;3  but  it  is  not  believed  that 
this  would  be  regarded  as  sufficient  under  our  statutes.  But  the 
omission  of  a  date  is  not  material,  as  it  may  be  supplied  by  parol ; 3 
neither  is  it  indispensable  that  the  name  of  the  creditor  should 
appear  in  the  instrument,  as  that,4  as  well  as  the  identity  of  the 
debt,  may  be  supplied  by  parol.5 

Sec.  95.  Promise  must  bind  the  Debtor  personally.  Conditions, 
Effect  of.  — The  words,  "unless  such  acknowledgment  or  promise 
are  made  or  contained  by  or  in  some  writing  signed  by  the  per- 
son chargeable  thereby,"  are  held  to  be  restricted  to  the  personal 
liability  of  the  debtor,  and  if  he  promises  to  pay  out  of  a  partic- 
ular fund,6  or  if  he  says  that  certain  persons  are  owing  him,  and 
that  the  creditor  may  get  the  amount  to  apply  on  his  debt  if  he 
can — die  does  not  thereby  charge  himself,  or  remove  the  statute 
bar  so  as  to  enable  the  creditor  to  recover  the  debt  of  him.7 
A  letter  in  which  the  debtor  wrote,  "  Though   I   do  not  deny  it, 

1  Bayley  v.  Ashton,  12  Ad.  &  E!  493.  In  Hyde  v.  Johnson,  2  Bing.  N.  C.  776, 
the  debtor's  wife  wrote  a  letter  to  the  plaintiff  in  her  husband's  name  and  at 
his  request,  proposing  to  pay  the  debt  by  instalments;  and  the  court  held  that, 
as  the  letter  was  signed  by  an  agent  and  not  by  th^  party  chargeable,  it  was 
not  sufficient.     See  also  Clark  v.  Alexander,  8  Scoit  N.  C.  147. 

J  Holmes  v.  Mackrell,  3  C.  B.  N.  S.  789. 

3  Kincaid  v.  Archibald,  73  N.  Y.  183;  Edmonds  v.  Downes,  2  Cr.  &  M.  459; 
Hartley  v.  Wharton,  n  Ad.  &  EI.  934;  Lechmere  v.  Fletcher,  n  C.  M.  &  R.  623. 

4  Harlley  v.  Wharton,  supra;  Mahon  v.  Cooley,  36  Iowa,  479. 

*  In  Shoitredge  v.  Check,  1  Ad.  &  El.  57,  the  defendant  had  written,  "  I  will 
pay  the  promissory  note,"  and  it  was  held  that  the  cnus  of  proving  the  exist- 
ence of  more  than  one  promissory  note,  to  which  the  writing  might  refer  was 
upon  the  person  disputing  the  debt.  And  under  the  rule  that  the  identity  of 
the  debt  may  be  shown  by  parol,  it  was  held  that  a  promissory  note,  though 
unstamped,  and  for  that  reason  void,  is  admissible  to  show  what  was  intended 
by  the  acknowledgment.     Spickernell  v.  Hotham,  Kay,  669. 

6  Routledsre  r'.  Ramsay,  8  Ad.  &  El.  221. 

1  Whippy  v.  Hillary,  5  C.  &  P.  207. 


244  STATUTES   OF   LIMITATION.  [CHAP.   VIII. 

I  do  not  promise  to  pay  it;  whether  I  will  promise,  and  what 
species  of  payment  I  will  make  I  reserve  for  future  considera- 
tion,"1 has  been  held  insufficient.  So  when  a  debtor  wrote  to 
his  creditor  among  other  things,  that  some  other  person  was  the 
principal  debtor,  and  after  urging  him  to  press  such  person  for 
payment,  says,  "  I  will  try  to  do  a  portion  of  it,  but,  in  fact,  the 
matter  belongs  to  him  exclusively.  After  you  have  interviewed 
him,  please  write  me  the  result,"  it  was  held  that  the  statute  bar 
was  not  removed  as  to  any  portion  of  the  debt.2 

1  Morrell  v.  Frith,  supra. 

'  Denny  v.  Marrett,  29  Minn.  361.     See  Russell  v.  Davis,  51  Minn.  482. 


§  9^-J  ACKNOWLEDGMENT   BY    PART    PAYMENT.  245 


CHAPTER  IX. 
Part  Payment,  Acknowledgment  by. 

Sec.     96.   Effect  of,  generally.  Sec.   105.   Effect   of    Part    Payment   of 

97.   Must   be  made  as    Payment  Principal  or  Interest. 

of  Part  of  Debt.  106.   Rebuttal      by      Implication. 
q8.   Must  be  Nothing  to  repel  In-  Indeterminate  Debt. 

ference  of  Admission  that  107.   Payment  into  Court. 

more  is  due.  108.   Identity  of  Debt. 

99.   Payment  by  Representatives  109.   Questions  for  the  Jury. 

of  Debtor.  no.  General    Rule  as   to  Appro- 

100.  Rule  in  Tippetts  v.  Heane.  priation  of  Payments. 

101.  Payment    must    be    author-  in.  Oral  Proof  of  Part  Payment. 

ized,  and  voluntary.  112.   Part  Payment  need    not   be 

102.  Rule  in  Linsell  v.  Bonsor.  in  Money. 

103.  Payment     made     lo    Agent  113.  Test  as  to  what  amounts  to 

binding,  when.  Part  Payment. 

104.  Principle  and  Requisites  of  114.   Part    Payment    by    Bill    or 

an     Acknowledgment     by  Note. 

Part  Payment.  115.   Indorsements  on  Notes  etc. 

116.  Evidence  of  Part  Payment. 

SEC.  96.  Effect  of,  generally.  —  In  England,  prior  to  the  adop- 
tion of  the  Stat.  9  Geo.  IV.,  c.  14,  a  part  payment  of  a  debt 
was  treated  as  a  sufficient  acknowledgment,  to  uphold  a  promise 
to  pay  it,  although  the  statute  of  James  I.  contained  no  such 
provision.  The  courts  read  an  exception  into  the  statute  in  the 
case  of  a  part  payment  of  either  principal  or  interest ;  and  this 
exception  has  been  expressly  preserved  in  the  Stat.  9  Geo.  IV., 
c.  14,  and  in  all  the  statutes  of  a  similar  character  in  the  States 
of  this  country  except  in  Nevada.  In  Nevada,  the  statute  con- 
tains no  exception  giving  effect  to  part  payment  as  an  acknowl- 
edgment; and  it  is  held  that  a  part  payment,  unless  evidenced 
by  a  writing  signed  by  the  debtor,  does  not  have  the  effect  either 
to  suspend  or  remove  the  statutory  bar.1      Under  this  provision, 

1  Wilcox  v.  Williams,  5  Nev.  206.  In  Georgia,  in  Holland  v.  Chaffin,  22  Ga. 
343,  it  was  held  that  partial  payment  of  a  note,  together  with  an  express  admis- 
sion of  the  debt,  aie  insufficient,  unless  the  admission  is  in  writing  See  also 
Peiia  v.  Vance,  21  Cal.  142;  and  Heinlin  v.  Castro,  22  id.  100,  to  the  same  effect. 
In  some  early  English  cases  arising  under  the  9  Geo.  IV.  it  was  held  that  a  part 
payment  of  a  debt  would  not  take  the  balance  out  of  the  statute  unless  there 
was  a  promise  in  writing.  Waugh  v.  Cope,  6  M.  &  W.  824;  Wainman  v.  Kyn- 
man,  1  Exch.  118.  But  this  doctrine  was  overruled  by  Cleave  v.  Jones,  15  Jur. 
515,  and  never  had  any  real  foundation.  Indeed,  it  was  in  defiance  of  the 
statute  and  its  plain  intent,  and  there  can  be  no  question  but  that  the  payment 


246  STATUTES   OF    LIMITATION.  [CHAP.   IX. 

the  part  payment  of  principal  or  interest  takes  the  case  entirely 
out  of  the  statute,  and  such  part  payment  may  be  proved  in  the 
same  manner  as  before  the  statutes  were  enacted.1  In  such  cases 
the  part  payment  is  made  an  acknowledgment  by  statute,  and 
only  leaves  the  plaintiff  to  establish  the  fact  that  it  was  made  and 
intended  as  a  part  payment;  whereas,  where  no  statutory  pro- 
vision exists,  such  part  payment  only  amounts  to  evidence  from 
which  an  acknowledgment  may  be  inferred,  and  is  not  absolutely 
an  acknowledgment.2  This  proviso  was  enacted  because  the  part 
payment  of  principal,  or  the  payment  of  interest,  stands  upon  a 
very  different  footing  from  a  mere  verbal  promise.  "A  prom- 
ise," observes  Tindal,  C.  J.,  "is  frequently  made  rashly,  and  is 
always  liable  to  misconstruction ;  whereas  a  payment  is  not  sup- 
posed to  be  made  unadvisedly.  A  person  may  part  with  his 
words  rashly,  not  so  with  his  money."3 

of  a  part  of  a  debt,  nothing  being  said  that  indicates  an  intention  not  to  pay 
the  balance,  or  to  repudiate  the  existence  of  a  balance,  revives  the  remainder 
of  the  debt,  and  gives  it  legal  vitality  for  a  new  statutory  period.  Jewett  v. 
Petit,  4  Mich.  508;  Aldrich  v.  Morse,  28  Vt.  642;  State  Bank  v.  Wooddy,  10 
Ark.  638;  Arnold  v.  Downing,  11  Barb.  (N.  Y.)  554;  Rucker  v.  Frazier,  4  Strobh. 
(S.  C.)  93;  Smith  v.  Simms,  9  Ga.  418;  Ayer  v.  Hawkins,  19  Vt.  28.  Perhaps 
something  more  than  a  naked  payment  should  be  shown.  Davidson  v.  Har- 
rison, 33  Miss.  41;  Davies  v.  Edwards,  15  Jur.  1044;  Smith  v.  Westmoreland,  12 
S.  &  M.  (Miss.)  663.  But  whatever  may  formerl>  have  been  the  doctrine  in  this 
respect,  there  can  be  no  question  but  that,  if  the  fact  of  a  part  payment 
is  established,  it  is  sufficient  to  renew  the  entire  debt,  unless  the  balance  is 
repudiated  or  its  existence  denied,  United  States  v.  Wilder,  13  Wall.  (U.  S.)  254; 
or  at  least  sufficient  to  warrant  a  jury  in  finding  a  promise  to  pay  the  balance, 
even  though  the  court  will  not  therefrom  draw  such  an  inference  as  a  matter  of 
law.  White  v.  Jordan,  27  Me.  370;  Whipple  v.  Stevens,  22  N.  H.  219;  Ilsley  v. 
Je-.vett,  2  Met.  (Mass.)  168;  Belch  v.  Onion.  4  Cush.  (Mass.)  559;  Nash  v.  Hodg- 
son, 31  Eng.  L.  &  Eq.  555;  Pond  v.  Williams,  1  Gray  (Mass.)  630;  Ramsay  v. 
Warner,  97  Mass.  8;  Sanderson  v.  Milton  Stage  Co.,  18  Vt.  107;  Nesom  v. 
D'Armand,  13  La.  Ann.  294;   Dyer  v.  Walker,  54  Me    IS. 

1  Cleave  v.  Jones,  6  Exch.  578;  Bank  of  Utica  v.  Ballou,  49  N.  Y.  155.  Part 
payment  of  the  interest  or  principal  of  a  debt,  unaccompanied  by  contemporane- 
ous qualifying  acts  or  declarations  of  the  payor  takes  a  debt  out  of  the  statute 
of  limitations;  and  the  statute  requiring  acknowledgments  to  be  in  wriiing 
alters  the  mode  of  proof,  but  not  the  effect  of  acknowledgments  or  promises,  and 
does  not  affect  the  effect  of  a  part  payment,  which  is  a  species  of  acknowledg- 
m»nt  in  every  sense  equal  10  one  expressed  in  writing.  Barron  v.  Kennedy,  17 
Cal.  574. 

n  Ridd  v.  Mogeridge,  2  H.  &  N.  567;  Hollis  v.  Palmer,  2  Bing.  N.  C.  713. 

1  Wyatt  v.  Hodson,  1  M.  &  Sc.  447.  In  Wesner  v.  Stein,  97  Penn.  St.  322, 
Mercur,  J.,  says:     "  Part  payment  of  a  debt  within  six  years  before  suit  brought 


£  97-J  ACKNOWLEDGMENT    BY    PART    PAYMENT.  247 

Sec.  97.  Must  be  made  as  Payment  of  Part  of  Debt.  —  In  order 
to  make  a  money  payment  a  part  payment  within  the  statute,  it 
must  be  shown  to  be  a  payment  of  a  portion  of  an  admitted  debt, 
and  paid  to,  and  accepted  by  the  creditor  as  such,  accompanied 
by  circumstances  amounting  to  an  absolute  and  unqualified 
acknowledgment  of  more  being  due,  from  which  a  promise  may 
be  inferred  to  pay  the  remainder.  If  the  payment  was  intended 
by  the  debtor  to  be  a  payment  of  all  that  was  due,  the  circum- 
stance of  the  creditor's  having  received  it,  and  treated  it  as  a  part 
payment  only,  will  not  bring  it  within  the  statute.1  Part  pay- 
ment of  a  debt  is  not  of  itself  conclusive  to  take  the  case  out  of 
the  statute.  In  order  to  have  that  effect,  it  must  not  only  appear 
that  the  payment  was  made  on  account  of  a  debt,  but  also  on 
account  of  the  debt  for  which  action  is  brought,2  and  that  the 
payment  was  made  as  a  part  of  a  larger  indebtedness,3  and  under 
such  circumstances  as  warrant  a  jury  in  finding  an  implied  prom- 
ise to  pay  the  balance;4  and  if  the  payment  was  made  under  such 

is  sufficient  from  which  to  infer  a  promise  to  pay;  but  the  payment  must  be 
clearly  proved."  Burr  v.  Burr,  26  Penn.  St.  284;  Yaw  v.  Kerr,  47  id.  333; 
Patton  v.  Hasstnger,  69  id.  311.  In  Barclay's  Appeal,  64  Penn.  St.  69,  Shars- 
wood,  J.,  says:  "  There  can  be  no  more  unequivocal  acknowledgment  of  a 
present  existing  debt,  than  a  payment  on  account  of  it,  and  according  to  all  the 
authorities  this  is  all  lhat  is  required  to  take  a  case  out  of  the  statute."  Part 
payment  does  not  create  a  new  debt,  but  revives  the  old  one,  and  the  action 
must  be  predicated  upon  the  original  debt.  Biscoe  v.  Stone,  11  Ark.  39;  Egery 
v.  Decrew,  53  Me    392;  Elmore  v.  Robinson,  18  La.  Ann.  651. 

'See  Foster  v.  Dawber,  6  Exch.  839,  853;  Tippetts  v.  Heane,  1  C.  M.  &  R. 
252,  and  4  Tyrw.  772. 

*  Tippetts  v.  Heane,  supra;  Wainman  v.  Kynman,  1  Exch.  118.  The  payment 
of  costs  to  the  prothonotary  does  not  take  the  judgment  out  of  ihe  statute,  as 
the  costs  were  not  a  part  of  the  debt.     Strawn  v.  Hook,  25  Penn.  St.  391. 

lA'Court  v.  Cross,  3  Bing.  329.  In  Tippetts  v.  Heane,  supra,  Parke,  B., 
says:  "  In  order  to  take  a  case  out  of  the  statute  of  limitations  by  a  part  pay- 
ment, it  must  appear,  in  the  first  place,  that  the  payment  was  made  on  account 
of  a  debt;  secondly,  it  must  appear  that  the  payment  was  made  on  account  of 
the  debt  for  which  the  action  is  brought.  But  the  case  must  go  further,  for  it 
is  necessary,  in  the  third  place,  to  show  that  the  payment  was  made  as  part 
payment  of  a  greater  debt;  because  the  principle  upon  which  a  part  payment 
takes  a  case  out  of  the  statute  is,  that  it  admits  a  greater  debt  to  be  due  at  the 
time  of  the  part  payment.  Unless  it  amounts  to  an  admission  that  more  is 
due,  it  cannot  operate  as  an  admission  of  any  still  existing  debt." 

4Linsell  v.  Bonsor,  2  Bing.  N.  C.  241,  holding  that  a  part  payment  will  not 
take  a  case  out  of  the  statute  of  limitations,  unless  it  is  expressly  made  as  part 
payment  in  discharge  of  liability  for  a  larger  amount,  and  with  the  intention 
of  admitting  a  liability  to  pay  the  residue.     Prior  to  the  case  of  A'Court  v.  Cross 


248  STATUTES   OF   LIMITATION.  [CHAP.    IX. 

supra,  it  was  supposed  that  the  mere  acknowledgment  of  a  debt  was  a  waiver 
of  the  statute;  but  that  case  decided  that  the  acknowledgment  must  be  such  as 
to  operate  as  a  new  promise.  The  mere  act  of  part  payment  does  not  of  itself 
take  the  case  out  of  the  statute,  but  the  paymenl  must  be  made  with  a  view  to 
revive  the  debtor's  liability.  In  Bateman  v.  Pinder,  3  Q.  B.  574,  the  court  put 
part  payment  on  the  same  footing  as  an  acknowledgment.  And  where  a  party 
revives  a  debt  by  paying  it  into  court,  but  at  the  same  time  refuses  to  pay 
interest,  such  payment  of  the  principal  does  not  revive  the  claim  for  interest. 
Collyer  v.  Willcock,  5  Bing.  513.  So,  where  some  items  of  account  are  barrel 
by  the  statute,  a  part  payment  by  the  debtor,  without  appropriation  to  such 
items,  will  not  take  them  out  of  the  statute.  Milis  v.  Fowkes,  5  Bing.  N.  C. 
455.  Hence  the  pan  payment  must  be  made  with  the  intention  of  creating. a 
new  liability  to  pay  the  debt.  The  acknowledgment  must  be  such  as  would 
authorize  the  jury  to  imply  from  it  a  promise  to  pay,  and  that  question  should 
be  left  to  them.  Linsell  v.  Bonsor,  2  Bing.  N.  C.  241;  Wakeman  v.  Sherman, 
9  N.  Y.  88;  Chambers  v.  Garland,  3  Greene  (Iowa)  322.  In  Harper  v.  Fairley,  53 
N.  Y.  442,  it  was  held  that  it  must  be  made  by  the  party  to  be  charged,  or  by 
some  person  authorized  to  make  a  new  promise  on  his  behalf  for  the  residue. 
Where  the  plaintiff  held  notes  against  the  defendant,  which  were  dated  more 
than  six  years  before  the  commencement  of  his  action,  and  the  jury  found  the 
fact  that  within  six  years  the  defendant  made  a  general  payment  lo  the  plain- 
tiff on  account  of  some  one  or  more  of  the  notes,  or  of  the  indebtedness  mani- 
fested by  them,  it  was  held  that  a  promise  of  further  payment  must  be  implied; 
that  it  was  not  essential  that  the  defendant  should  have  recollected  the  giving 
of  the  notes  at  the  time  of  making  the  payment,  if  he  was  aware  of  the  indebted- 
ness for  which  they  were  given,  and  acted  with  reference  to  it.  Ayer  v.  Haw- 
kins, 19  Vt.  26.  See  Sanderson  v.  Milton  Slage  Co.,  iS  Vt.  107.  In  an  action 
by  an  administrator  on  a  promissory  note  commenced  more  than  six  years  after 
the  date  of  the  note,  an  indorsement  in  the  handwriting  of  the  intestate  of  a 
payment  purporting  to  have  been  made  more  than  two  years  before  the  statute 
would  attach,  and  six  months  prior  to  his  death,  held,  the  jury  might  regard 
it  as  evidence  of  a  new  promise,  though  there  was  no  proof  other  than  as  above 
of  the  time  when  said  indorsement  was  actually  made.  Coffin  v.  Bucknam,  12 
Me.  471.  A  deceased  party  had  made  in  his  books,  within  three  years,  an  entry 
settling  an  account  against  the  plaintiff,  crediting  him,  "  by  amount  of  services 
rendered  on  account  $398.53."  Among  the  papers  of  his  executrix;  after  her 
death,  was  found  a  receipt  given  by  plaintiff  to  the  executrix  for  $307.86,  "  on 
account  of  services  rendered  the  deceased  in  his  lifetime,"  dated  about  six 
months  before  the  bringing  of  this  action.  The  plaintiff  brought  his  action  on 
account  for  services  rendered  as  clerk  and  agent  for  the  deceased  against  his 
administrators  de  bonis  non.  Held,  that  the  entry  and  receipt  were  sufficient 
to  remove  the  bar  of  the  statute,  which,  without  them,  would  have  been  an 
effective  one  to  the  action.  Quynn  v.  Carroll,  10  Md.  197.  An  indorsement,  in 
the  plaintiff's  handwriting,  of  a  partial  payment  on  a  witnessed  note  within 
twenty  years,  together  with  testimony  that  the  defendant  had  since  said  he 
v.  Id  pay  the  balance  of  the  principal,  was  held  to  revive  a  note  dated  more 
than  twenty  years  since.      Howe  v.  Siunders,  38  Me.  350.  (a) 

{a)  If  the  holder  of  a  promissory  note  that  any  payment  was  made  at  the 
indorses  and  signs  a  dated  receipt  of  time  of  its  date,  so  as  to  stop  limitation 
money    thereon,   this    is    not    evidence     running  on  the  note.     Clough  v.  Mc- 


97- ] 


ACKNOWLEDGMENT    BY    PART    PAYMENT. 


249 


circumstances  as  to  rebut  any  such  promise,  it  does  not  affect  the 
operation  of  the  statute. (a)  Thus,  where  a  debtor  paid  to  a 
creditor  a  less  sum  than  was  due,  under  an  agreement  on  the 
part  of  the  creditor  to  accept  it  in  full,  it  was  held  that  such  pay- 
ment did  not  remove  the  statute  bar.1  If  it  stands  ambiguous 
whether  the  payment  is  a  part  payment  of  an  existing  debt, 
more  being  admitted  to  be  due,  or  whether  the  payment  was 
intended  by  the  party  to  satisfy  the  whole  of  the  demand  against 
him,  the  payment  cannot  operate  as  an  admission  of  a  debt  so  as 
to  extend  the  period  of  limitation.2  In  some  of  the  States,  it  is 
held  that  a  partial  payment  of  a  note  or  other  similar  obligation 
does  not  remove  the  statute  bar  as  to  the  balance,  unless  it  is 
accompanied  by  an  express  acknowledgment  of  a  further  indebt- 

1  Berrian  v.  New  York,  4  Robt.  (N.  Y.)  538. 

'  Waugh  v.  Cope,  6  M.  S:  W.  824;  Burkitt  v.  Blanshard,  3  Exch.  89.  A  promise 
by  which  a  debt  discharged  in  bankruptcy  is  renewed,  must  be  express  and 
distinct,  it  cannot  beimplied  or  inferred;  and  so  partial  payments  will  not  revive 
the  debt  in  this  respect.  The  rule  in  this  respect  is  different  from  that  applied 
to  the  defense  of  the  statute  of  limitations.  Lawrence  v.  Harrington,  122 
N.  Y.  408.  Credits  may  be  considered  as  payments,  which  would  take  the  case 
out  of  the  operation  of  I  he  latter  statute.     Ibid. 


Daniel.  58  N.H.  201;  Smith  v.  Wells, 
(N.  H.),  46  Atl.  51;  Bradford  v.  Reed, 
125  N.  C.  311;  Purdy  v.  Purdy,  62  N. 
Y.  S.  153.  See  Cunningham  v.  Davis, 
175  Mass.  213.  In  Missouri  the  rule  is 
that,  to  establish  a  prima  facie  case, 
the  plaintiff  must  prove  either  that  the 
credit  was  indorsed  on  such  note  at  a 
time  when  it  was  against  his  interest 
to  make  it,  or  that  it  was  made  with 
the  consent  of  the  payor;  but  a  mere 
indorsement  by  the  holder  himself 
without  the  knowledge  or  consent  of 
the  payor,  or  other  proof  that  the  pay- 
ment was  then  made,  is  insufficient  if 
the  note  would  be  barred  by  the  statute 
but  for  the  credit.  See  Erhart  v.  Diet- 
rich, 118  Mo.  419;  McElvain  v.  Garrett, 
80  Mo.  App.  300.  Also  that  a  part  pay- 
ment sufficient  as  an  acknowledgment 
against  the  maker  will  not  stop  the 
running  of  the  statute  as  to  an  indorser. 
Maddox  v.  Duncan,  143  Mo.  613. 

(a)  "  The  principle  on  which  a  part 
payment  takes  a  case  out  of  the  statute 
is  that  the  party  paying  intended  by  it 
to  acknowledge  and  admit  the  greater 
debt  to  be  due."  United  States  v. 
Wilder,  13  Wall.  (U.  S.)  254    256.     In 


Lang  v.  Gage,  65  N.  H.  173,  a  promise 
which  was  not  made  by  the  debtor  on 
account  of  his  personal  liability  was 
held  not  to  furnish  evidence  of  such 
personal  liability.  It  is  not  the  part 
payment  that  takes  the  case  out  of  the 
statute,  but  the  new  promise  of  which 
it  is  the  evidence;  and  hence  it  will 
not  suffice  unless  made  under  such 
circumstances  that  a  promise  to  pay 
the  rest  of  the  greater  debt  may  reason- 
ably be  inferred  therefrom  Brown  v. 
Latham,  58  N.  H.  30;  Engel  v.  Brown, 
6q  id.  183,  185;  Day  v.  Mayo,  154  Mass. 
472.  An  express  new  promise  may  be 
limited  by  conditions  introduced  into 
it.  Stowell  v.  Fowler,  59  N.  H.  585. 
And,  as  an  acknowledgment,  as  evi- 
dence of  a  new  promise,  may  be  also 
thus  qualified,  so  the  effect  of  a  part 
payment,  as  evidence  from  which  a 
new  promise  may  or  must  be  inferred, 
may  be  limited  or  controlled  in  the 
same  way.  Dodge  v.  Leavitt,  59  N. 
H.  245;  Engel  v.  Brown,  supra; 
Mooar  z>.  Mooar,  69  N.  H.  643.  A 
mere  offer  of  compromise  does  not 
show  a  new  promise.  Thomas  v. 
Carey,  26  Col.  485. 


250  STATUTES    OF    LIMITATION.  [CHAP.    IX. 

edness,  or  by  an  express  promise  to  pay  it ; :  but  this  doctrine 
is  predicated  upon  the  peculiar  wording  of  the  statute  or  upon 
erroneous  grounds  of  decision  which  do  not  generally  prevail  in 
the  English,  or  in  the  great  majority  of  our  own  courts  —  the  rule 
generally  adopted  being  that  a  general  payment  on  account  of  a 
greater  debt,  unaccompanied  by  any  qualifying  acts,  removes  the 
statute  bar  as  to  the  balance.3  (a) 

SEC.  98.  Must  be  Nothing  to  repel  Inference  of  Admission  that 
more  is  due.  —  If  the  payment  is  accompanied  by  declarations 
and  statements,  from  some  of  which  it  is  to  be  inferred  that  a 
further  debt  still  remained  due,  and  from  others  that  all  further 
liability  was  repudiated,  it  is  for  a  jury  to  draw  their  own  infer- 
ences from  the  statements  made,  and  adopt  or  reject  what  por- 
tions of  them  they  think  fit.3  If  there  is  a  mere  naked  payment 
of  money,  without  anything  to  show  on  what  account  or  for  what 
reason  the  money  was  paid,  the  payment  will  be  of  no  avail  under 
the  statute.      If  the  party  merely  says,  "  Place  the  money  to  my 

1  Smith  v.  Westmoreland,  12  S.  &  M.  (Miss.)  663;  Michigan  Ins.  Co.  v.  Brown, 
11  Mich.  265;  Steel  v.  Matthews,  7  Yerg.  (Tenn.)  313. 

'Semmes  v.  Magruder,  10  Md.  242;  Foster  v.  Starkey,  12  Cush.  (Mass.)  324; 
Niemcewicz  v.  Bartleit,  13  Ohio.  271;  Burr  v.  Burr,  26  Penn.  St.  284;  Whipple 
v.  Stevens,  22  N.  H.  219;  Barron  v.  Kennedy,  17  Cal.  574;  Sanford  v.  Hayes, 
ig  Conn.  591;  Bridgeton  v.  Tones,  34  Mo.  471;  Hunt  v.  Holly,  18  Ga.  378; 
McLaren  v.  McMartin,  36  N.  Y.  88.  Where  there  is  a  running  account  between 
parties  of  long  standing,  of  which  the  debtor  has  never  been  furnished  with 
the  items,  or  otherwise  apprised  of  the  entries  therein,  it  is  not  sufficient  to 
warrant  the  court  in  so  applying  a  general  payment  as  to  take  the  whole  debt 
out  of  ihfc  statute,  but  that  the  question  is  for  the  jury  to  find  on  what  indebted- 
ness the  payment  was  made.  Beltzhoover  v.  Yewell,  11  G.  &  J.  (Md.)  212.  Yet 
it  seems  that  the  mere  circumstance  that  the  debtor  was  ignorant  of  the  items 
of  an  account,  or  failed  to  make  inquiries  in  that  regard,  as  a  prudent  man 
should  do,  will  not  in  any  sense  alter  the  legal  effect  of  a  general  payment  made 
thereon. 

3Wainman  v.  Kynman,  1  Exch.  118;  Baildon  v.  Walton,  1  Exch.  617.  In 
Blair  v.  Lynch,  105  N.  Y.  636,  it  was  held  that  a  payment,  such  as  will  avert  the 
effect  of  the  statute  as  a  bar,  must  be  a  conscious  and  voluntary  act  on  the  part 
of  the  debtor,  explainable  only  as  a  recognition  and  confession  of  the  existing 
liability. 

(n)  The-  party  seeking  to  charge  Crow  v.  Gleason,  141  N.  Y.  489;  Mur- 
anothei  always  has  the  burden  to  show  dock  v.  Waterman,  145  N.  Y.  55;  Mat- 
thai  the  payments  necessary  to  take  teson  v.  Palsner,  67  N.  Y.  S.  612; 
the  debt  out  of  the  statute  were  made  Stansbury  v.  Stansbury.  20  W.  Va.  73. 
bv  the  debtor  for  his  own  account,  and  Smull's  Estate,  9  Penn.  Dist.  Hep. 
with  reference   to   that    particular  debt.  532. 


§  98-]  ACKNOWLEDGMENT   BY    PART   PAYMENT.  25 1 

account,  without  specifying  any  account  or  any  debt,  and  the 
creditor  appropriates  the  payment  in  part  liquidation  of  the  debt 
barred  by  the  statute,  without  the  privity  or  assent  of  the  debtor, 
this  will  be  of  no  avail  as  an  acknowledgment  of  the  debt  by  the 
debtor;  but  it  will  be  otherwise  if  the  appropriation  is  made 
with  the  privity  and  assent  of  the  latter.  If  there  is  a  disputed 
and  an  undisputed  debt,  or  if  there  are  two  debts  —  one  barred 
by  the  statute  and  the  other  not  barred  —  a  general  payment  on 
account  will  be  of  no  avail  at  common  law,  under  the  statute, 
because  it  is  left  uncertain  to  which  debt  the  payment  was 
intended  to  be  applied.1  But  all  the  surrounding  circumstances 
may  be  regarded  to  ascertain  the  intent  of  the  debtor  in  making 
the  payment,  and  see  whether  there  is  any  evidence  to  show  to 
which  debt  he  intended  it  to  be  applied.2  The  particular  account 
on  which  the  money  was  paid  may  be  proved  by  subsequent 
declarations  or  statements  of  the  party  making  the  payment,  as 
well  as  by  declarations  accompanying  the  act  of  payment.  If, 
therefore,  the  fact  of  the  payment  is  proved,  any  subsequent 
statement  or  declaration  of  the  party,  although  made  after  action 
brought,  may  be  given  in  evidence,  to  show  either  that  the  pay- 
ment was  the  interest  of  a  debt  due,  or  that  it  was  a  part  pay- 
ment of  principal,  or  that  it  was  made  in  reduction  of  some 
particular  debt  proved  or  admitted  to  be  due.3     The  burden  of 

1  Bum  v.  Boulton,  2  C.  B.  476;  Mills  v.  Fowkes,  5  Bing.  N.  C.  455. 

2  Nash  v.  Hodgson,  1  Jur.  N.  S.  948. 

3  Waters  v.  Tompkins,  2  C.  M.  &  R.  720.  In  Bevan  v.  Gething.  3  Q.  B.  740. 
in  an  action  upon  a  promissory  note  to  which  the  statute  was  pleaded  the  plain- 
tiff gave  evidence  that  the  defendant  had  paid  fiye  shillings  on  account  of  the 
note.  He  then  offered  to  prove  that  the  defendant,  on  a  subsequent  occasion, 
admitted  orally  that  he  made  such  payment  on  account  of  the  note;  and  it  was 
held  that  such  evidence  was  properly  admissible.  In  Willis  v.  Newham,  3 
Y.  &  J.  518,  and  Bayley  v.  Ashton,  12  Ad.  &  El.  493,  oral  evidence  of  part  pay- 
ment as  an  acknowledgment  was  held  insufficient;  but  in  Waters  v.  Tompkins, 
2  C.  M.  &  R.  237;  part  payment  having  been  proved  otherwise  than  by  admis- 
sions, it  was  held  that  oral  declarations  were  receivable  to  show  that  the  pay- 
ment, when  made,  had  been  appropriated  to  the  debt  in  question.  Moore  v. 
Strong,  1  Bing.  New  Cas.  441,  and  Trentham  v.  Deverill,  3  id.  397,  also  show 
how  far  evidence  of  this  kind  is  admissible  to  support  or  explain  other  proof  of 
a  payment.  In  Maghee  v.  O'Neil,  7  M.  &  W.  531,  where  the  decision  in  Willis 
v.  Newham,  was  adhered  to,  Lord  Abinger,  C.  B.,  said:  "  If  this  question  were 
res  integra,  I  should  certainly  say  that  the  mode  of  payment  of  principal  or 
interest  was  left  by  Lord  Tenterden's  act  to  be  proved  as  at  common  law. 
*     *     *     My  impression,  however,  is  that  the  act  of  Parliament  has  been  pressed 


252  STATUTES   OF   LIMITATION.  [CIIAI'.   IX. 

establishing  a  part  payment  sufficient  as  to  time  and  other  cir- 
cumstances to  remove  the  statute  bar  is  upon  the  plaintiff.1 

SEC.  99.  Payment  of  Representatives  of  Debtor.  —  In  New 
York  it  is  held  that  under  the  Code,  as  before,  part  payment 
does  not  take  a  debt  out  of  the  statute,  unless  made  under  such 
circumstances  as  to  warrant  the  inference  that  the  debtor  thereby 
recognized  the  debt,  and  signified  his  willingness  to  pay  it. 
Thus,  payment  by  an  assignee,  in  trust  for  the  benefit  of  credit- 
ors, does  not  take  the  case  out  of  the  statute  as  to  the  debtor, 
except  upon  an  express  authorization  by  him ;  and  any  authority 
to  the  assignee  to  pay  part  of  it  is  a  recognition  by  the  debtor 
on  the  day  when  the  authority  is  given,  and  not  on  the  subse- 
quent day  of  payment ;  and  in  a  case  where  the  assignment  was 
before  the  bar  had  run  and  authorized  payment  of  all  debts  for 
money  borrowed,  it  was  held  that   the  statute  ran   against  the 

beyond  its  intention."  And  Parke,  B.,  referring  to  Willis  v.  Newham,  and 
Bayley  u.  Ashlon,  said:  "  My  feeling  certainly  is,  thai  those  decisions  have 
gone  too  far;  but  sitting  as  we  do,  with  a  co-ordinate  jurisdiction  only,  we  can- 
not overrule  the  judgment  of  the  Court  of  Queen's  Bench."  He  intimated, 
however,  that  the  plaintiff  might,  in  a  fresh  action,  bring  error;  and  he  added: 
"  If  it  comes  before  us  in  that  shape,  I  shall  then  hold  myself  fully  at  liberty 
to  co  isider  it  independently  of  the  cases  "  The  later  case  of  Bevan  v.  Gehling, 
supra,  adopted  the  doctrine  of  Waters  v.  Tompkins,  and  Bank  of  Utica  v. 
Ballou,  49  N.  Y.  155. 

1  Riggs  v.  Roberts,  85  N.  C.  151.  In  this  case  the  court  held  that  the  obstruc- 
tion of  the  statute  of  limitations  may  be  removed  by  an  act  of  partial  payment, 
proved  to  have  been  made  at  a  time  commencing  from  which  the  prescribed 
limitation  would  not  have  expired  at  the  beginning  of  the  action;  but  the 
burden  is  upon  the  plaintiff  to  show  that  the  partial  payment  was  made  at  such 
a  time  as  to  save  the  debt  from  the  operation  of  the  statute.  An  unaccepted 
offer  to  discharge  the  bond  by  a  conveyance  of  land  is  not  such  a  recognition  of 
a  subsisting  liability  as  in  law  will  imply  a  promise  to  pay  the  debt  In  Flem 
ing  v.  Hayne,  1  Starkie,  370,  Lord  Ellenborough  instructed  the  jury:  "  You 
ought  to  be  satisfied  that  the  defendant  made  a  distinct,  unequivocal  promise  to 
pay  before  he  is  placed  again  in  the  responsible  situation  from  which  the  law 
has  discharged  him."  See  also  Green  v.  Greensboro,  83  N.  C.  449;  Fraley  v. 
Kelly,  67  id.  78;  Henly  v.  Lanier,  75  id.  172;  Faison  v.  Bowden,  72  id.  405. 
The  new  promise  which  will  revive  a  debt  extinguished  by  bankruptcy  must  be 
distinct  and  specific;  and  a  mere  acknowledgment  of  the  debt,  though  implying 
a  promise  to  pay,  is  not  sufficient.  It  was  held  by  the  Supreme  Court  of 
Massachusetts  that  even  a  payment  of  interest  or  principal  indorsed  on  the  note 
by  the  debtor  himself  is  insufficient  to  warrant  a  jury  in  inferring  a  new  promise 
v  the  residue  of  the  debt.  Merriam  v.  Bayley,  1  Cush.  (Mass.)  77;  Cam- 
bri  Ige  Savings  Inst.  v.  Litllefield,  6  id.  210. 


§  IOO.]  ACKNOWLEDGMENT   BY   PART   PAYMENT.  253 

debt  from  the  day  of  the  assignment.1  Thus,  by  authority  and 
upon  principle,  a  part  payment,  except  in  those  States  where  by 
statute  it  is  expressly  given  effect  to,  as  above  stated,  has  no 
greater  effect  than  any  other  unqualified  acknowledgment,  and 
must  be  connected  both  with  the  parties  and  the  claim  in  suit, 
by  sufficient  evidence.3  (a) 

Sec.  100.  Rule  in Tippetts  v.  Heane.3 —  In  this  case  the  plaintiff 
proved  by  a  witness  that  he,  by  the  direction  of  the  defendant, 
paid  to  the  plaintiff  ^"io  within  six  years;  but  the  witness  was 
unable  to  say  upon  what  account  the  money  was  paid,  or  to  give 
any  evidence  beyond  the  mere  fact  of  having  paid  the  money  by 
the  defendant's  direction.  The  judge  left  it  to  the  jury  to  say 
whether  the  money  was  paid  on  account  of  the  debt  in  suit;  and 
also  observed  to  them  that  no  other  account  between  the  parties 
was  shown  to  have  existed  at  the  time  when  the  payment  was 
made.  The  jury  having  found  a  verdict  for  the  plaintiff,  the 
Court  of  Exchequer  set  it  aside,  on  the  ground  that  there  was 
no  evidence  from  which  the  jury  were  warranted  in  finding  that 
by  the  payment  the  defendant  admitted  that  more  was  due;  in 
other  words,  that  there  was  no  evidence  that  the  defendant 
intended  it  as  a  part  payment  of  a  greater  debt.  In  another 
English   case,4   it   appeared   that   the   plaintiff,  an   attorney,  had 

1  Pickett  v.  King,  34  Barb.  (N.  Y.)  193.  See  also,  to  the  same  effect,  Richard- 
son v.  Thomas,  13  Gray  (Mass.)  381;  Roosevelt  v.  Mark,  6  Johns.  (N.  Y.)Ch.  266. 

s  Tippetts  v.  Heane,  1  C.  M.  &  R.  253;  Bateman  v.  Boulton,  2  C.  B.  476; 
Wainman  v.  Kynman,  1  Exch.  118;  Mills  v.  Fovvkes,  4  Bing.  N.  C.  76. 

3  Supra. 

4  In  Waugh  v.  Cope,  6  M.  &  W.  824,  Lord  Abinger,  C.  B.  said:  "  There 
have  been  several  cases  in  which  it  has  been  considered,  after  much  discussion, 
and  adopted  by  all  the  courts,  that  the  payment  must  appear,  either  by  the 
declarations  or  acts  of  the  party  making  it,  or  by  the  appropriation  of  the  party 
in  whose  favor  it  is  made,  to  De  made  in  part  payment  of  the  debt  in  question; 
if  it  stands  ambiguous,  whether  ii  be  part  payment  of  an  existing  debt,  or  pay- 
ment generally,  without  the  admission  of  any  greater  debt  as  due  to  the  party; 
if  it  may  have  been  made  by  the  party  paying  in  reduction  of  an  account  due 

(a)  The    part   payment    need    not  be  the  balance  to    the  morigage  debt,  is 

made  by  the  debtor,  but  it  is  sufficient  not   a    part   payment  on  the  mortgage 

if  made  by  his  direction  and  authority,  note  so  as  to  take  it  out  of  the  statute 

BufTington  v.  Chase,  152  Mass.  534.  of  limitations   as  to  the  mortgagor,  if 

The  application,  by  the  assignee  of  a  the   latter  at  the  time  of   the  sale  has 

mortgage  of  realty  containing  a  power  conveyed    the    premises  to  a  third  per- 

of  sale,    after  a    sale   thereunder    and  son  upon  his  agreement  to  pay  the  note, 

payment  of  the  expenses  of  the  sale,  of  Campbell  v.  Baldwin,  130  Mass.  igq. 


254  STATUTES   OF   LIMITATION.  [CHAP.   IX. 

done  professional  business  of  various  kinds  for  the  defendant  in 
1827  and  several  subsequent  years.  In  July,  1832,  the  defendant 
having  been  a  witness  on  a  lunacy  inquiry,  in  which  the  plaintiff 
was  concerned  as  solicitor,  the  plaintiff  wrote  to  him  to  ask  what 
were  his  expenses  on  that  occasion.  The  defendant,  in  reply, 
requested  the  plaintiff  to  allow  what  was  usual,  and  place  the 
same  to  his  (the  defendant's)  account.  In  March,  1833,  the 
plaintiff  wrote  to  the  defendant,  informing  him  that  the  sums 
allowed  were  £2  2s.,  and  \os.  6d.,  inclosing  receipts  for  those 
sums  for  the  defendant's  signature,  and  concluding,  "  I  will  give 
you  credit  for  the  sums  in  my  account  against  you,  agreeably  to 
your  note  of  the  21st  July  last."  The  defendant  returned  the 
receipts  signed  by  him,  and  the  £2  2s.  and  io.y.  6d.  were  paid  to 
the  plaintiff  on  the  production  of  those  receipts.  In  1838,  the 
plaintiff  delivered  to  the  defendant  a  bill  of  costs,  amounting  to 
£289,  the  first  item  being  in  1827,  and  the  two  last  in  1830  and 
1 83 1.  These  two  were  charges  for  £5  and  £$  cash  lent;  the  rest 
of  the  bill  was  for  professional  business.  The  court  held  that 
the  letters  given  in  evidence  did  not  sufficiently  show  that  the 
money  paid  was  paid  in  part  satisfaction  of  the  debt  in  suit,  to 
remove  the  statute  bar.  The  rule  adopted  in  this  case  is  gen- 
erally followed  in  this  country.1 

to  himself,  or  intended  to  satisfy  the  whole  of  the  demand  against  him,  —  then 
it  is  not  sufficient  to  bar  the  statute  of  limitations.  And  we  think  it  does  not 
satisfactorily  appear,  from  the  letters  given  in  evidence  in  this  case,  that  the 
defendant  admitted  that  there  was  any  existing  account  against  him,  more  than 
the  sum  he  was  paying;  all  that  he  admits  is,  that  the  money,  when  received, 
is  to  be  applied  in  discharge  of  lhe  account  which  the  plaintiff  had  against  him; 
but  there  is  no  distinct  admission  that  there  was  an  existing  debt  of  which  that 
was  a  payment  in  part.  We  think,  therefore,  that  the  case  falls  within  the 
principles  of  the  decisions  in  this  court,  and  also  in  the  Court  of  Common  Pleas, 
and  that  the  rule  must  be  made  absolute  to  enter  a  verdict  for  the  defendant  on 
the  plea  of  the  statute." 

1  Hodge  v.  Manley,  25  Vt.  210;  Arnold  v.  Downing,  n  Barb.  (N.  Y.)  554. 
The  court  cannot  imply  a  promise,  so  at  to  take  a  contract  out  of  the  operation 
of  the  statute,  as  an  inference  of  law,  from  the  mere  payment  of  a  part  of  the 
debl ;  but  the  evidence  should  be  submitted  by  the  court  to  the  jury,  with  proper 
instructions.  White  v,  Jordan,  27  Me.  370.  If  it  is  shown,  or  the  jury  find, 
thai  the  payment  was  made  by  the  debtor,  and  was  intended  by  him  as  a  part 
payment  of  a  greater  debt,  it  is  sufficient,  as  a  part  payment  is  of  itself  an 
a  (mission  of  the  existence  of  the  debt,  and  an  implied  promise  to  pay  the  bal- 
ance, unless  accompanying  circumstances  or  declarations  negative  the  admis- 
sion. Murr  7'.  Williams,  20  Ark.  171.  A  part  payment  to  stop  the  statute  must 
be  such  as  admits  the  existence  of  a  greater  debt,  Prenatt  v.  Runyon,  12  Ind. 


§  IOI.]  ACKNOWLEDGMENT   BY    PART   PAYMENT.  255 

SEC.  101.  Payment  must  be  authorized  and  voluntary.  —  Not 
only  must  the  debt  be  identified,  and  the  payment  shown  to  be 
a  part  payment,  but  it  must  also  be  unaccompanied  by  any 
declarations  or  circumstances  that  rebut  the  inference  of  a  will- 
ingness and  intention  on  the  part  of  the  debtor  to  pay  the  bal- 
ance;1 and  it  must  have  been  made  by  the  debtor  in  person,  or 

174;  and  must  appear  to  be  a  payment  made  on  account  of  the  debt  for  which 
the  action  was  brought.  It  must  furiher  appear  that  the  payment  was  made  as 
part  payment  of  a  larger  debt,  and  that  it  was  voluntary  on  the  part  of  the 
debtor;  and  it  must  occur  under  such  circumstances  as  are  consistent  with 
an  intent  to  pay  such  balance.  Arnold  v.  Downing,  11  Barb.  (N.  Y.)  554.  Evi- 
dence of  a  want  of  consideration  for  a  note  sued  upon  is  not  admissible  to  dis- 
prove a  partial  payment  indorsed  thereon,  and  relied  upon  by  the  holder  to  save 
the  statute.  Davidson  v.  Delano,  11  Allen  (Mass.)  523.  But  an  intention  that 
the  payment  should  be  a  pavt  payment  must  be  shown  either  by  the  debtor's 
declarations,  acts,  or  the  circumstances.  The  question  as  to  when  the  payment 
became  effective  is  also  to  be  gathered  from  the  circumstances.  Thus,  where 
a  debtor  does  work  for  his  creditor,  at  different  periods,  in  payment  of  his 
indebtedness,  and  the  account  for  such  work  is  stated,  and  allowed  by  the 
parties  as  a  payment,  the  aggregate  amount  of  the  account  will  be  a  payment 
as  of  the  date  of  the  statement  and  allowance,  and  not  as  of  the  dates  of  the 
several  items  of  the  account,  in  the  absence  of  any  agreement  to  that  effect. 
Borden  v.  Peay,  20  Aik.  293. 

1  Smith  v.  Eastman,  3  Cush.  (Mass.)  355;  Bell  v.  Crawford,  8  Gratt.  (Va.)  no. 
Under  the  Louisiana  Code,  a  widow  is  not  liable  in  solido  with  the  surviving 
partners  of  her  husband  on  a  firm  note,  even  where  she  has  accepted  the  suc- 
cession without  benefit  of  inventory;  payments,  therefore,  made  by  them,  do 
not  interrupt  the  running  of  the  prescription  in  her  favor.  Henderson  v.  Wads- 
worth,  115  U.  S.  264.  Th  ;  holder  of  a  note  threatened  to  sue  the  surety  unless 
a  payment  was  made  at  once.  The  maker,  in  the  holder's  presence,  handed 
money  to  the  surety,  and  the  surety  handed  it  to  the  holder.  It  was  held  that 
the  payment  was  to  be  deemed  the  surety's.  Green  v.  Morris,  58  Vt.  35.  While 
the  bankrupt  act  was  in  force,  an  assignee  in  insolvency  proceedings  under  the 
State  law  having  under  order  of  court  made  a  payment  on  a  note  of  the  insolvent, 
it  was  held  that  this  payment  did  not  suspend  the  running  of  the  statute.  Ben- 
ton v.  Holland,  58  Vt.  533.  Part  payment,  within  six  years,  of  a  book  account 
with  an  express  verbal  promise  to  pay  the  balance  takes  the  balance  out  of  the 
bar  of  the  statute.  State  v.  Corlies,  47  N.  J.  L.  108.  If  the  holder  of  a  note 
draws  an  order  on  a  surety  on  it,  and  the  order  is  paid,  this  is  a  payment  on 
the  note  which,  as  to  such  surety,  takes  the  case  out  of  the  bar  of  the  statute. 
Long  v.  Miller,  93  N.  C.  233.  Payments  made  by  the  maker  of  a  note  after  its 
maturity  do  not  suspend  the  running  of  the  statute  in  favor  of  the  sureties 
Walters  v.  Kraft,  23  S.  C.  578;  s.  c,  55  Am.  Rep.  44.  Part  payment  does  not 
stop  ihe  running  of  the  statute  as  to  debts  arising  out  of  different  transactions 
from  that  on  which  the  part  payment  was  made.  Compton  v.  Johnson,  19  Mo. 
App.  88.  If  an  indorsement  of  payments  on  a  note  is  relied  on  to  take  the  case 
out  of  the  bar  of  the  statute,  plaintiff  must  prove  when  the  payments  were  made. 
Loewer  v.   Haug,  20  Mo.  App.  163.     Part  payment  to  a  trustee,  from  the  pro- 


256  STATUTES   OF   LIMITATION.  [CHAP.   IX. 

by  some  one  authorized  by  him,  to  make  a  new  promise  on  his 
behalf.1  And  a  payment  made  by  a  third  person,  without 
authority  from  the  debtor  to  make  it,  cannot  remove  the  statute 
bar,  because  it  does  not  imply  any  acknowledgment  of  the  debt 
by  the  debtor.2  Under  this  rule,  it  is  held  that  a  partial  pay- 
ment by  an  assignee  for  the  benefit  of  creditors  will  not  remove 

ceeds  of  a  trustee's  sale,  of  part  of  a  debt  secured  by  the  deed  of  trust,  does  not 
arrest  ihe  running  of  the  statute  in  favor  of  the  debtor  on  the  residue  of  the 
debt.  Leach  v.  Asher,  20  Mo.  App.  656,  where  taxes  were  levied  and  collected 
for  interest  on  municipal  bonds,  and  payments  were  made  accordingly,  it  was 
held  that  such  payments  took  the  bonds  out  of  the  bar  of  the  statute.  School 
District  v.  Xenia  Bank,  19  Neb.  89.  A  part  payment  cannot  give  vitality  to  a 
void  promise  to  pay.  Miner  v.  Lorman,  56  Mich.  212;  but  payment  aiid 
-acceptance  of  interest  on  a  note  stops  the  running  of  the  statute.  De  Koslowski 
v.  Yesler,  2  Wash.  Ter.  407. 

1  Harper  v.  Fairley,  53  N.  Y.  44.2;  Smith  v.  Coon,  22  La.  Ann.  445.  A  pay- 
ment by  one  as  tutor  for  an  estate  he  is  administering  both  as  curator  and  tutor 
interrupts  the  running  of  the  statute  in  favor  of  the  estate.  Succession  of 
Ducker,  10  La.  Ann.  75S.  If  a  surety  makes  a  payment  upon  the  note  as  agent 
of  the  principal,  it  interrupis  the  statute  as  to  him,  unless  he  discloses  the 
chaiacter  in  which  he  makes  the  payment  at  the  time.  Holmes  v.  Durell,  51 
Me.  201.  But  a  payment  by  the  principal  does  not  renew  the  note  as  to  a 
surety,  unless  he  is  a  party  to  such  payment.  Hunter  v.  Robertson,  30  Ga. 
479.  In  Galpin  v.  Barney.  37  Vt.  627,  a  payment  made  by  an  agent  after  his 
agency  had  terminated,  was  held  inoperative  to  remove  the  statute  bar.  In 
Littlefield  v.  Littlefield.  gr  N.  Y.  203,  it  was  held  that  while  a  debtor  may 
authorize  another  to  make  a  payment  for  him  which  will  be  effectual  as  against 
a  plea  of  the  statute,  the  authority  should  be  clearly  established  Thus,  one  of 
three  makers  of  a  joint-and-several  promissory  note,  who  in  fact  signed  it  as 
surety,  upon  being  applied  to  for  payment,  requested  the  payee  to  tell  the  prin- 
cipal that  he  must  make  a  payment  thereon,  and  that  he  (the  surety)  said  so. 
The  payee  made  the  statement  to  the  principal  as  requested,  who  promised  to 
and  did  subsequently  make  a  payment,  this  he  reported  to  the  surety,  who  in 
response  slated  that  it  was  all  right.  In  an  action  upon  the  note,  it  was  held 
that  these  facts  did  not  show  an  authority  conferred  upon  the  principal  to  make 
a  payment  as  the  agent  of  the  surety,  so  as  to  take  the  case  as  to  the  latter 
out  of  the  statute;  also  that  they  failed  to  establish  a  ratification  of  the 
payment.     See  Winchell  v.    Hicks,  18   N.  Y.    558;    First  Nat.    Bank  v.   Ballou, 

49  'n-  '55- 

'Smith  v.  Coon,  22  La.  Ann.  4 j.5 ;  Rich  v.  Niagara  Savings  Bank,  3  Hun 
(N.  Y.)  481.  Where  a  payment  is  made  by  an  agent  without  authority,  and  the 
principal  afterwards  assents  thereto,  he  is  bound  by  it,  and  it  has  the  same 
effect  as  though  made  by  himself,  First  Nat.  Bank  of  Utica  v.  Ballou,  49  N.  Y. 
155;  but  if  the  debtor  does  not  assent  therelo,  he  is  not  bound.  Harper  v. 
Fairley,  53  N.  Y.  542.  See  Miller  v.  Talcott,  46  Barb.  (N.  Y.)  167.  A  part  pay- 
ment made  by  a  wife  is  not  sufficient,  unless  she  has  authority.  Butler  v. 
Price,  115  Mass.  578. 


§   lOI.]  ACKNOWLEDGMENT    BY    PART   PAYMENT.  257 

the  bar  as  to  the  assignor;1^)  nor  will  the  payment  of  a  judg- 
ment obtained  against  a  debtor  by  default  renew  the  debt  as 
to  the  balance  ;2(£)  nor  does  the  payment  of  a  dividend  in  the 
Orphans'  Court  by  an  administrator  preclude  him  or  his  succes- 
sor in  the  office  from  pleading  the  statute  as  to  the  balance; 3 
nor  will  any  compulsory  payment  have  the  effect  to  remove  the 
statute  bar.  Thus,  in  Louisiana,  where  during  the  late  civil  war, 
the  debtor  was  compelled  to  pay  a  debt  due  to  the  plaintiffs  to  a 
receiver  of  the  Confederate  States,  which  was  paid  in  an  unlaw- 
ful currency,  it  was  held  that  such  payment  did  not  interrupt 
prescription  on  the  note.4  Nor  will  a  part  payment  by  an  admin- 
istrator, under  a  surrogate's  decree,  take  the  debt  out  of  the 
statute  as  to  the  residue;5  nor  a  payment  by  one  partner  upon  a 
partnership  debt,  after  the  partnership  is  dissolved.6  Nor  does  a 
part  payment  derived  from  a  collateral  security,  without  the 
debtor's  assent  to  it  as  a  payment,  operate  to  remove  the  statute 

1  Roosevelt  v.  Mark.  6  Johns.  (N.  Y.)  Ch.  266;  Pickett  v.  Leonard,  34  N.  Y. 
175;  Pickett  v.  King,  34  Barb.  (N.  Y.)  193  (dissaproving  Barger  v.  Durvin,  22  id. 
68).  See  Davies  v.  Edwards,  7  Exch.  22;  Read  Johnson,  1  R.  I.  21;  Marien- 
thal  v.  Mosler,  16  Ohio  St.  566;  Roscoe  v.  Hale,  7  Gray  (Mass.)  274;  Smart  t. 
Fosier,  18  Abb.  (N.  Y.)  Pr.  305;  Stoddard  v.  Doane,  7  Gray  (Mass.)  387;  Rich- 
ardson  v.  Thomas,  13  id.  381. 

5  Goodwin  v.  Buzzell,  35  Vt.  9. 

3  Miller  v.  Dorsey,  9  Md.  317. 

4  New  York  Belting  Co.  v.  Jones,  22  La.  Ann.  530. 

5  Arnold  v.  Downing,  11  Barb.  (N.  Y.)  554.  A  partial  payment  by  an 
administrator  upon  a  debt  already  barred  does  not  remove  the  statute  bar  as 
to  the  balance.  McLaren  v.  Martin,  36  N.  Y.  88.  But  the  rule  would  be  other- 
wise as  to  a  payment  before  the  statute  has  run.  Heath  v.  Grenell,  61  Barb. 
(N.  Y.)  190. 

6  Graham  v.  Selover,  59  Barb.  (N.  Y.)  313.  But  in  Missouri  a  part  payment 
bv  one  partner  after  dissolution,  five  years  before  suit  brought,  takes  the  debt 
out  of  the  staute.  McClurg  v.  Howard,  45  Mo.  3*55.  So  also  in  Connecticut. 
Bissell  v.  Adams,  35  Conn.  299. 

(a)  A  part  payment  of  £5  on  a  slat-  are  not  payments  by  a  stranger  to  the 
ute-barred  debt  by  an  insolvent  debtor  judgment  debtor,  but  keep  the  debt 
shortly  before  going  into  bankruptcy  is  alive.  See  Brew  v.  Brew,  [1899]  2  I. 
not  void  as  a  fraudulent  preference  so  R.  163.  In  America,  a  payment  made 
as  to  prevent  its  reviving  the  debt,  on  a  debt  by  the  sale  of  the  debtor's 
Ex  parte  Gaze,  23  Q.  B.  D.  74.  property  on  execution,  not  being  vol- 

(b)  In  general,  the  running  of  the  untary,  does  not  arrest  the  running 
statute  of  limitations  on  a  judgment  of  the  statute  of  limitations.  Hughes 
is  not  stopped  by  a  payment  made  v.  Boone,  114  N.  C.  54;  In  re  Raeder. 
thereon.  McCaskill  v.  McKinnon,  121  167  Penn.  St.  597;  Moffitt  v.  Carr.  4S 
N.  C.  192.  Under  the  English  statutes,  Neb.  403.  Nor  does  the  issuance  of  an 
levy  of  an  execution  by  the  sheriff  and  execution  stop  the  running  of  the 
part  payment  of  the  judgment  by  him  statute.     Berkson  v.  Cox,  73  Miss.  339. 

[stats,  of  lim. —  17] 


258  STATUTES    OF    LIMITATION.  [CHAP.    IX. 

bar;1  and  although  in  some  of  the  cases2  it  is  intimated  that  a 
sale  of  collaterals  made  within  a  reasonable  time  after  they  are 
deposited  with  the  creditor,  and  the  proceeds  applied  upon  the 
debt,  may  operate  as  a  part  payment  at  the  date  of  the  receipt 
of  such  proceeds,  yet  this  doctrine  seems  fallacious,  as  resting 
upon  the  mistaken  notion  that  the  creditor  is  thereby  made  an 
agent  of  the  debtor  for  the  collection  or  sale  of  such  collaterals, 
ignoring  the  circumstance  that  the  creditor  cannot  be  made  the 

1  Harper  v.  Faifley,  53  N.  Y.  442.  In  Brown  v.  Latham,  58  N.  H.  30,  42  Am. 
Rep.  568,  the  debtor,  at  the  time  he  executed  the  note  in  suit,  left  certain  notes 
and  accounts  in  the  hands  of  the  payee  as  collateral  security,  and  authorized 
him  to  collect  the  same  and  apply  the  proceeds  upon  the  note.  The  payee  col- 
lected some  of  the  notes  and  accounts  after  more  than  six  years  from  the  date 
of  the  note,  and  applied  the  amount  upon  the  note.  In  an  action  upon  the  note 
brought  more  than  six  years  after  its  date,  the  statute  was  pleaded,  and  the 
plaintiff  set  up  the  receipt  of  the  money  upon  such  notes  and  accounts  as  a  part 
payment.  But  the  court  held  that  the  application  of  the  money  so  collected 
upon  the  note  without  notice  to  the  payor,  could  not  operate  as  a  part  payment 
sufficient  to  remove  the  statute  bar.  Stanley,  J.,  said:  "Assuming  for  the 
purposes  of  this  case  that  the  plaintiff's  receipt  of  ihe  proceeds  of  the  collateral 
security,  and  his  application  of  them  in  part  payment  of  the  debt,  were  in  every 
sense  legal  and  right,  there  are  many  cases  in  which  the  creditor's  legal  receipt 
and  application  of  a  payment  do  not  show  a  new  promise  of  the  debtor.  Mills 
v.  Fowkes,  5  Bing.  N.  C.  455;  Nash  v.  Hodgson,  6  De  G.  M.  &  G.  474;  Burn  v. 
Boulton,  2  C.  B.  476;  State  Bank  v.  Wooddy,  10  Ark.  638;  Wood  v.  Wylds,  11 
id.  754;  Pond  v.  Williams,  1  Gray  (Mass.)  630;  Walker  v.  Butler,  6  El.  &  Bl. 
506.  "  But  such  payment  need  not  be  made  by  the  party  himself.  It  may  be 
made  by  an  agent  duly  authorized  for  that  purpose,  and  payment  so  made  will 
be  as  effectual  as  if  made  by  the  principal.  But  it  is  not  enough  that  the  agent 
is  authorized  to  make  the  payment;  his  authority  must  enable  him  to  bind  the 
principal  by  a  promise  to  pay,  and  such  authority  cannot  be  implied  from  the 
bare  authority  to  make  the  payment.  Winchell  v.  Hicks,  18  N.  Y.  558.  So  it 
is  settled  by  numerous  authorities  that  a  payment  by  assignees  in  bankruptcy 
or  insolvency  does  not  take  a  case  out  of  the  statute.  Roscoe  v.  Hale,  7  Gray 
(Mass.)  274;  Stoddard  v.  Doane,  id.  387;  Pickett  v.  Leonard,  34  N.  Y.  175; 
Roosevelt  v.  Mark,  6  Johns.  Ch.  (N.  Y.)  292;  Davies  v.  Edwards,  7  Exch.  22; 
I  Sm.  Lead.  Cas.  869,  890.  And  this  is  upon  the  ground,  not  that  the  payment 
was  not  authorized,  but  that  the  authority  did  not  extend  to  binding  the  party 
by  an  acknowledgment  of  the  debt  and  a  promise  to  pay  it.  The  defendant 
placed  in  the  plaintiff's  hands  the  notes,  accounts,  and  chattels,  as  collateral 
security  for  the  note  in  suit.  He  authorized  Ihe  plaintiff  to  collect  and  convert 
them  into  money,  and  apply  the  proceeds  in  payment  of  the  note.  He,  in  fact. 
m  ide  an  assignment  of  that  part  of  his  property  for  the  payment  of  the  plain- 
tiff's debt.  It  is  the  same  in  principle  as  if  he  had  made  an  assignment  of  all 
his  property  for  the  benefit  of  all  his  creditors.  This  was  the  whole  extent  of 
his  contract,  and  the  limit  of  the  plaintiff's  authority. 

'  Porter  v.  Blood,  5  Pick.  (Mass.)  476. 


§   IOI.J  ACKNOWLEDGMENT   BY    PART   PAYMENT.  259 

agent  of  the  debtor  to  such  an  extent  as  to  make  an  act  done  by 
him  operate  as  a  new  promise  to  himself,  without  which  ingredi- 
ent or  element  a  payment  cannot  operate  to  remove  the  statute 
bar;  and  according  to  the  later  cases  it  seems  that  the  question 
as  to  whether  the  creditor  exercises  diligence  or  not,  in  the  sale 
or  collection  of  the  collaterals,  has  no  influence  upon  the  ques- 
tion of  part  payment,  as  the  statute  can,  in  any  event,  only  be 
suspended  by  some  act  of  the  debtor,  or  some  person  authorized 
by  him,  from  which  a  new  promise  may  be  inferred,  and  in  this 
view  the  suspension  of  the  statute  could  only  be  claimed  from 
the  time  when  such  collaterals  were  deposited  with  the  cred- 
itor.1 (a)     If  the  debtor  himself  sells  or  collects  any  of  such  collat- 

1  Brown  v.  Latham,  5S  N.  H.  30,  where  Stanley,  J.,  said:  "  The  plaintiff 
relies  upon  some  authorities  which  recognize  the  doctrine  that  a  debtor's  giving 
collateral  security,  and  the  creditor's  application  of  the  proceeds  of  it,  within  a 
rasonable  tim;  are  evidence  of  a  new  promise  made  at  the  time  of  its  applica- 
tion. The  qualification  of  a  reasonable  time  relieves  the  doctrine  of  a  degree  of 
injustice,  but  furnishes  no  sound  foundation.  It  signifies  that  the  doctrine  is 
based  upon  the  creditors  authority  to  receive  the  proceeds  of  the  security  in 
payment  of  the  debt  within  a  reasonable  lime:  but  the  creditor  s  lien  upon  the 
pledged  property,  and  his  authority  to  appropriate  the  proceeds,  are  not  restricted 
in  that  way.  He  is  authorized  to  receive  the  proceeds  after  a  reasonable  time 
and  apply  them  to  the  debt;  but  what  he  receives  after  the  expiration  of  a 
reasonable  time,  is  as  much  a  payment  as  what  he  receives  before,  and  his 
authority  in  the  former  case  is  as  clear  as  in  the  latter.  His  authority  in  both 
cases  is  to  receive  payment  out  of  the  proceeds.  The  foundation  of  the  doctrine 
of  a  new  promise  of  the  debtor,  within  a  reasonable  time,  supposed  to  exist  in 
a  limited  authority  of  the  creditor  to  receive  payment,  derived  from  collateral 
security  within  a  reasonable  time  wholly  fails.  There  is  a  material  difference 
between  receiving  a  payment  and  making  one.  The  plaintiff's  authority  was  not 
to  make  a  payment  of  the  proceeds,  but  to  receive  them  in  payment,  and 
whether  what  he  did  was  receiving  a  payment  or  making  one,  it  was  not  done 
by  the  defendant  or  by  his  authority,  within  six  years  of  the  date  of  the  writ, 
and  it  is  immaterial  whether  it  was  done  by  the  plaintiff  within  a  reasonable 
time.  Authority  given  to  the  plaintiff  by  the  defendant  to  receive  the  proceeds 
of  the  security  within  or  beyond  a  reasonable  time,  is  no  evidence  of  authority 

(a)  Although  the  creditor  cannot  be  Lee,   14   Neb.    193;   Moffitt   v.  Carr,  48 

an    agent   to  make  a  part  payment  to  Neb.  403;  National  State  Bank  v.  Row- 

himBelf,    the    debtor's    assent    in     the  land,    1    Col.    App.   468;   Buffington   v. 

original   contract   between  the  parties  Chase,    152    Mass.    534,    538.      Contra, 

to   a   sale  of   the   collateral  makes  the  Wolford   v.    Cook,    71    Minn.    77.     See 

creditor's  sale  thereof  and  the  applica-  Merrill    v.  National   Bank  of    Tackson- 

tion    of    the     proceeds    to    the    debt    a  ville,    173    U.    S.    131,    140;   Brown    v. 

voluntary  payment  thereon  and  not  a  Latham,    58    N.    H.    30;     Campbell    v. 

payment  in  invitum,  as  in  the  case  of  Baldwin,    130    Mass.    199;    Sheppard's 

a    sale    on    execution    noticed    in    the  Estate,  180  Penn.  St.  57. 
editor's  preceding  note.     Sornberger  v. 


26o  STATUTES   OF   LIMITATION.  [CHAP.    IX. 

erals,  and  passes  the  proceeds  over  to  the  creditor,  such  act 
would  amount  to  a  part  payment  sufficient  to  remove  the  statute 
bar,  because  from  such  act  a  new  promise  could  fairly  be  raised,1 
and  such  also  would  be  the  case  if  a  third  person  authorized  by 
the  debtor  to  sell  collaterals  and  make  such  application,  should 
hand  over  the  money  to  the  creditor,  received  from  such  collat- 
erals, because,  unless  his  authority  had  been  previously  revoked, 
he  would  be  authorized  to  make  the  payment,  with  all  the  legal 
consequences  which  could  be  implied  therefrom.  If,  by  an  agree- 
ment between  the  parties,  a  third  person  is  to  pay  a  part  of  a  cer- 
tain debt,  and  the  creditor  consents  to  accept  him  as  a  debtor  to 
that  amount,  it  is  treated  as  a  payment  at  the  time  when  the 
agreement  is  entered  into,  and  the  statute  begins  to  run  again 
from  that  date,  although  the  money  is  not  in  fact  paid  until  some 
time  afterwards;2  but  where  a  third  party  agrees  with  the  debtor 
to  assume  the  payment  of  a  note,  and  the  payee  does  not  accept 
him  as  payor  in  lieu  of  the  original  debtor,  the  statute  is  not 
interrupted  by  a  payment  made  by  such  third  party,  until  pay- 
ment is  actually  made.3 

SEC.  102.  Rule  in  Linsell  v.  Bonsor.4  —  In  this  case,  the  defend- 
ant had  given  a  sum  of  money  to  an  agent,  with  instructions 
not  to  pay  it  to  the  plaintiff  unless  he  would  receive  it  in  full 
of  the  debt;  but  the  agent  disregarded  the  instructions,  and  paid 
the  money,  and  took  a  receipt  for  it  on  account.  The  court  held 
that  the  payment  under  these  circumstances  could  not  be  held 
as  a  part  payment  so  as  to  defeat  the  statute,  because  there  was 
no  intention  on  the  defendant's  part  to  admit  his  liability  for  the 
residue  of  the  debt,  and  that,  the  agent  having  exceeded  his 
authority,  his  act  could  not  bind  the  defendant.  A  payment 
made  upon  a  note  by  the  sale  of  collaterals,  deposited  with  the 
creditor  by  theedebtor  at  the  time  a  note  was  given,  will  not 
operate  to  suspend  or  defeat  the  operation  of  the  statute,  even 

given  him  to  bind  the  defendant  by  a  new  promise  or  acknowledgment.  If  the 
itiff's  receipt  of  payment  of  part  of  the  debt  from  the  security  within  he 
six  years,  was,  for  some  purposes,  a  payment  made  by  the  defendant,  it  was 
not  made  under  such  circumstances  that  his  promise  to  pay  the  remainder  can 
<-;i>i!v  be  inferred  from  it." 

1  Whipple  v,  Blackington,  <;7  Mass.  476. 

,;  Butts  v.  Perkins,  41  M:irb.  (N.  Y.)  509. 

'Coi  kfield  v.  Farley,  21  La.  Ann.  521. 

4  2  Bing.  N.  C.  241. 


§   I03-]  ACKNOWLEDGMENT   BY    PART   PAYMENT.  261 

though  it  is  evident  that  an  immediate  sale  of  the  collaterals  was 
not  contemplated  by  the  parties.1  Generally  it  may  be  said  that 
the  payment  or  acknowledgment  was  made  by  the  defendant, 
and  also  that  it  was  made  by  him  in  the  capacity  in  which  he  is 
sued ;  as,  in  an  action  against  an  executor  or  administrator,  if  it 
is  sought  to  take  the  case  out  of  the  statute  by  reason  of  a  part 
payment  made  by  him,  it  must  be  shown  to  have  been  made  by 
him  in  his  representative  character.2  So,  too,  the  payment  must 
have  been  such  as  was  binding  upon  the  plaintiff,  and  must  have 
been  made  to  the  holder  of  the  security,  or  some  person  by  him 
authorized  to  receive  it. 

Sec.  103.  Payment  made  to  Agent  binding,  when.  — A  pay- 
ment made  to  an  agent  of  the  creditor  is  sufficient ; 3  and  upon 
principle,  if  the  creditor  ratifies  the  payment  to  a  third  person, 
although  such  person  had  no  authority  to  receive  it  for  him,  it 
binds  him,  and  is  operative  to  remove  the  statutory  bar.  In 
Nevada,  it  has  been  held  that  a  new  promise  must  be  made  to 
some  person  authorized  to  receive  it,  and  that  a  remittance  of 
money  to  a  stranger  to  the  debt,  to  pay  it  over  and  have  it 
applied  on  the  debt,  is  not  sufficient.'4  In  any  event,  in  order 
that  a  payment  made  to  a  third  person  shall  operate  as  a  pay- 
ment to  the  principal,  or  that  a  payment  made  by  a  third  person 
shall  operate  as  a  payment  by  the  principal,  it  must  be  shown 
that  the  person  receiving  or  making  the  payment  was  an  agent 
for  that  purpose,  or  that  his  acts  were  understandingly  ratified  by 
the  principal;  and,  unless  the  evidence  to  that  end  is  legally 
sufficient,  the  question  should  not  be  submitted  to  the  jury.5  (a) 

Sec.  104.  Principle  and  Requisites  of  an  Acknowledgment  by 
Part  Payment.  —  The  principle    upon  which  a  part  payment  of 

1  Lyon  v.  State  Bank,    12  Ala.  508. 

2  Larason  v.  Lambert,  12  N.  J.  L.  247;  Scholey  v.  Walton,  12  M.  &  W.  516. 

3  Edwards  v.  Janes,  1  K.  &  J.  534;  Evans  v.  Davies,  4  Ad.  &   El.  840. 

4  Taylor  v.  Hendrie,  S  Nev.  243.  See  also  Fletcher  v.  Updike,  3  Hun  (N.  Y.) 
350,  where  a  claim  presented  by  a  wife  twenty-two  years  after  the  receipt  by 
her  deceased  husband  of  the  avails  of  her  separate  estate  was  barred,  and  that 
a  promise  to  pay  the  same,  made  to  any  person  other  than  the  wife  or  her  duly 
authorized  agent,  would  not  operate  to  remove  the  statutory  bar. 

6  Harding  v.  Edgecumbe,  2S  L.  J.  Ex.  313. 

(a)  In  Stamford,  S.  &  B.  Banking  Co.  dorsed  and  transferred   it  was  not  an 

v.   Smith,    [1892]    1    Q.    B.  765,    it   was  acknowledgment  taking   the  case  out 

held  that  part  payment  of  a  promissory  of  the  statule. 
note   to   the    payee,    after    he    had    in- 


262  STATUTES   OF    LIMITATION.  [CHAP.   IX. 

principal  or  interest  by  a  debtor  will  prevent  his  availing  himself 
of  the  bar  of  the  statute  is,  that  such  a  payment  amounts  to  an 
acknowledgment  of  the  debt ;  and  from  an  absolute  acknowledg- 
ment, as  we  have  seen,  the  law  implies  a  new  promise  founded 
on  an  old  consideration  to  pay.:(«)  In  a  leading  English  case 
upon  this  question  2  the  requisites  of  an  acknowledgment  by  part 
payment  are  laid  down  as  follows:  "  In  order  to  take  a  case  out 
of  the  statute  of  limitations  by  a  part  payment,  it  must  appear 
in  the  first  place  that  the  payment  was  made  on  account  of  a 
debt;  secondly,  that  the  payment  was  made  on  account  of  the 
debt  for  which  the  action  was  brought;  and  in  the  third  place  it 
is  necessary  to  show  that  the  payment  was  made  as  a  part  pay- 
ment of  a  greater  debt,  because  the  principle  upon  which  a  part 
payment  takes  a  case  out  of  the  statute  is  that  it  admits  a  greater 
debt  to  be  due  at  the  time  of  part  payment."  It  must  also 
appear  that  the  payment  was  made  before  the  action  was 
brought.3 

Sec.  105.  Effect  of  Part  Payment  of  Principal  or  Interest. — 
Questions  have  been  raised  how  far  a  payment  of  principal  implies 

1  English  v.  Walhen,  9  Bush  (Ky.)  38";  Bealy  v.  Greenslade,  2  Cr.  &  J.  61: 
Purdon  v.  Purdon,  10  M.  &  W.  562.  A  part  payment  suspends  the  statute,  and 
starts  it  anew  from  the  date  of  such  payment.  Thorn  v.  Moore,  21  Iowa,  285; 
Strong  v.  M'Connell,  5  Vt.  33S;  Dyer  v.  Walker,  54  Me.  iS;  Hicks  v.  Lusk,  19 
Ark.  692;  Real  Estate  Bank  v.  Hartfield,  5  id.  551;  Burr  v.  Williams,  20  id.  171; 
Joslyn  v.  Smith,  13  Vt.  353;  Tillinghast  v.  Nourse,  14  Ga.  641;  Turner  v.  Ross. 
1  R.  I.  88;  Balcom  v.  Richards,  6  Cush.  (Mass.)  360;  Partlow  v.  Singer,  2 
Oregon,  307;  M'Gehee  v.  Greer,  7  Port.  (Ala.)  537;  Biscoe  v.  Stone,  11  Ark.  39- 
Chapman  v.  Boyce,  16  N.  H.  237;  Eaton  v.  Gillet,  17  Wis.  435;  Walton  v. 
Robinson,  5  Ired.  (N.  C.)  L.  341;  Smith  v.  Simns,  9  Ga.  41S;  Bridgeton  v. 
Jones,  34.  Mo.  471;  Palmer  v.  Andrews,  1  McAl.  (U.  S.  C.  C.)49i;  Hart  v.  Holly, 
18  Ga.  378;  McLaren  v.  McMartin,  36  N.  Y.  83;  Barron  v.  Kennedy,  17  Cal.  574; 
Whipple  v.  Stevens,  22  N.  H.  219;  Carshore  v.  Huyck,  6  Barb.  (N.  Y.)  583. 
Payments  on  a  bond  and  mortgage,  and  written  acknowledgments  of  the  amount 
due  thereon  within  twenty  years,  repel  the  presumption  of  payment  under  the 
New  York  statute.     Carll  v.  Hart,  15  Barb.  (N.  Y.)  565. 

2Tippetls  v.  Heane,  1  C.  M.  &  R.  252;  Smith  v.  Simms,  9  Ga.  418;   Rucker  v. 

Frazier,  4  Strobh.  (S.  C.)  93;  Carshore  v.  Huyck,  6   Barb.  (N.  Y.)  5S3;  Sander 

son  v.   Milton  Stage  Co.,  18  Vt.  107.     Payment  of  a  judgment    recovered    for 

interest  on    a   note    is    not   sufficient   to   take   the  principal  out  of   the  statute. 

Morgan  v.  Rowlands,  L.  R.  7  Q.  B.  493. 

3  Part  payment  after  action  brought  does  not  remove  the  statute  bar.  Bate- 
man  v.  Pinder,  3  Q.  B.  574.      But   under  the  old  theory  the  rule  was  otherwise. 

(a)  See  Scott  v.  Synge,  27  L.   R.  Ir.  560;   ///  re  Conlan's  Estate,  29  id.  199. 


■§  105.]  ACKNOWLEDGMENT   BY    TART    PAYMENT.  263 

a  promise  to  pay  interest,  and  vice  versa.  On  this  point  it  may 
be  noticed  that,  as  a  rule,  a  debt  is  composed  of  principal  and 
interest,  and  upon  all  interest-bearing  claims  the  interest  is  a  part 
of  the  debt  as  fast  as  it  accrues,  and  unless  when  a  payment  is 
made  upon  the  principal  debt  the  debtor  expressly  disavows  the 
interest,  the  latter  is  thereby  saved  from  the  operation  of  the 
statute,  as  well  as  the  principal,  and  payment  of  interest  is  con- 
sequently a  part  payment  of  the  whole  debt ; !  and  this  reasoning 
is  equally  applicable  to  the  converse  case.  Parke,  B.,  has 
observed  that  payment  of  interest  does  not  necessarily  prove  that 
the  principal  money  is  due,  but  that  it  is  evidence  of  it.2  And 
it  may  be  said  that,  unless  at  the  time  of  its  payment  the  debtor 
expressly  restricts  its  application,  and  disavows  the  principal 
debt,  it  is  conclusive.3  But  under  the  rule  that  a  simple  contract 
cannot  coexist  with  one  under  seal,  unless  one  is  intended  to  be 
simply  collateral  to  the  other,  it  is  held  that  the  mere  payment 
of  interest  on  a  single  bill  barred  by  the  statute  is  not  sufficient 
to  support  assumpsit  for  the  balance  due  thereon,  or  to  interrupt 
the  statute  as  to  the  sealed  instrument.4  The  rule  is  that  a  par- 
tial payment  on  a  debt,  whether  of  principal  or  interest,  before  it 
becomes  due,  is  prima  facie  evidence  of  an  acknowledgment  that 
the  residue  is  unpaid,  and  suspends  the  running  of  the  statute 
from  that  date,5  and  such  payment  may  be  proved  by  parol.6     It 

Love  v.  Hackett,  6  Ga.  486.  In  Sweet  v.  Hentig,  24  Kan.  497,  it  was  held  that 
a  mere  promise  to  give  credit  for  a  payment  previously  made  is  not  sufficient. 

1  Bealy  v.  Greenslade,  2  Cr.  &  J.  61;  Sigourney  v.  Drury,  14  Pick.  (Mass.) 
387;  Wyatt  v.  Hodson,  8  Bing.  309;   Barron  v.  Kennedy,  17  Cal.  574;  Bradfield 

v.  Tupper,  7  Eng.  L.  &  Eq.  541;  Fryeburg  v.  Osgood,  21  Me.  176;  Walton  v. 
Robinson,  5  Ired.  (N.  C.)  341;  Con  well  v.  Buchanan,  7  Blackf.  (Ind.)  537;  San- 
ford  v.  Hayes,  ig  Conn.  591;  Worthington  v.  Grimsditch,  10  Jur.  26. 

2  Purdon  v.  Purdon,  10  M.  &  W.  562. 

3  Rich  v.  Niagara  Savings  Bank,  3  Hun  (N.  Y.)48i;  Marcelin  v.  Creditors,  21 
La.  A.nn.  423. 

4  Leonard  v.  Hughlett,  41  Md.  380. 

6  English  v.  Wathen,  9  Bush  (Ky.)  387.  In  Denise  v.  Denise,  no  N.  Y.  562, 
it  was  held  that  a  claim  for  services  rendered  for  many  years  under  an  agree- 
ment to  pay  a  certain  sum  per  year  is  an  entire  claim,  and  a  payment  thereon 
takes  the  entire  balance  out  of  the  operation  of  the  statute.  In  re  Consalus,  95 
N.  Y.  340,  where  after  the  making  of  a  loan,  a  promissory  note  was  given  by 
the  borrower  to  the  lender  for  the  sum  loaned,  under  an  agreement  that  the 


6  Carshore  v.   Huyck,  6  Barb.  (N.  Y.)  593;   Bank  of  Utica  v.  Ballou,  49  N.  Y. 
155;  Com'rs  of  Leavenworth  vl  Higginbotham,  17  Kan.  62. 


264  STATUTES   OF   LIMITATION.  [CHAP.   IX.. 

follows,  therefore,  that  the  implication  of  a  promise  derived  from 
part  payment  of  principal  or  interest  is  liable  to  be  rebutted,  and 
will  not  take  the  case  out  of  the  statute,  unless  made  under  cir- 
cumstances which  do  not  negative  the  implied  promise  to  pay 
the  residue.  Thus,  where  a  person,  on  being  applied  to  for 
interest,  paid  a  sovereign,  and  said  he  owed  the  money  but  would 
not  pay  it,  it  was  held  not  to  amount  to  an  acknowledgment, 
subject  to  the  question  for  the  jury  to  decide  whether  the  debtor 
seriously  intended  to  refuse  payment,  or  spoke  only  in  jest.1     So 

former  should  pay  more  than  lawful  interest,  it  was  held  that  while  the  defense 
of  usury  was  good  as  against  the  note,  the  lender  was  entitled,  in  the  absence 
of  evidence  lhat  the  loan  was  made  originally  upon  a  usurious  agreement,  to 
recover  the  sum  loaned  with  lawful  interest,  deducting  therefrom  payment  of 
interest  which  had  been  made  at  the  usurious  rate  agreed  upon;  and  that  the 
payment  of  interest,  although  made  and  indorsed  upon  the  usurious  note,  was 
made  for  the  money  originally  loaned,  and  might  be  resorled  to  to  take  the  case 
out  of  the  statute.  In  Gilbert  v.  Comstock,  93  N.  Y.  484.,  where  a  claim  was 
presented  for  the  board  of  the  testatrix  from  1863  to  her  death  in  February, 
1879,  w'tn  interest  from  the  expiration  of  each  year,  and  it  appeared  that  a  pay- 
ment in  part  was  made  by  the  testatrix  in  November,  1875,  it  was  held  that  the 
statute  might  attach  to  sach  a  claim,  but  that  the  payment  operated  as  an 
admission  and  renewal  of  liability  for  whatever  was  unpaid  for  six  years  prior 
thereto;  that  a  decree  of  the  surrogate  limiting  the  recovery  to  six  years  prior 
to  the  death  of  the  testatrix  was  error;  that  prior  to  the  going  into  effect  of  the 
code,  a  contestant  of  a  claim  presented  by  an  executor  against  the  estate  was 
not  required  to  present  a  written  answer  or  formal  objections;  and  that  the 
claim  was  open  to  any  answer  of  defense,  and  was  subject  to  be  defeated  if  at 
the  testator's  death  the  statute  had  run  against  it. 

1  Wainman  v.  Kynman,  1  Ex.  118.  The  mere  fact  of  payment  does  not  neces- 
sarily take  the  case  out  of  the  statute  where  there  are  words  spoken  at  the  time 
that  indicate  that  the  debtor  did  not  admit  any  balance  to  be  due,  and  it  i-  for 
t'e  juiy  to  say  whether  the  debtor  did  or  did  not  intend  to  refuse  payment  of 
the  balance.  See  Baildon  v.  Walton,  1  Exch.  617.  In  Waters  v.  Tompkins, 
2  C.  M.  &  R.  723,  it  was  held  that  where  the  fact  of  payment  of  a  sum  of  money 
is  proved,  the  appropriation  of  it  may  be  shown  by  other  evidence,  even  by  a 
verbal  statement.  The  interpretation  given  to  Stat.  9  Geo.  IV.  c.  19,  in  Willis 
7.  Newham,  3  Y.  &  J.  518,  and  followed  in  Maghee  v.  O'Neil,  7  M.  &  W.  531; 
Bayley  v.  Ashton,  4  P.  &  D.  214,  although  not  without  an  intimation  that  its 
authority  was  doubtful,  was  finally  overruled  by  the  Exchequer  Chamber  in 
Cleave  v.  Jones,  6  Exch.  573.  It  had  previously  been  held  in  Williams  v.  Grid- 
Icy.  9  Met.  (Mass.)  482,  under  a  provision  similar  to  the  9  Geo  IV.,  that,  as  a 
writing  is  not  made  necessa-v  to  the  proof  of  a  part  payment,  it  may  be  estab- 
Hshed  by  the  admissions  of  the  defendant,  although  such  admissions  are  no 
longer  admissible  as  a  direct  acknowl-dgment  of  the  debt.  And  see  Gilbert  v. 
ns,  124  Mass.  174.  The  same  construction  has  been  given  to  a  like  statute 
bv  the  courts  of  Maine,  Sibley  v.  Lambert,  30  Me.  253;  and  in  Connecticut,  in 
Beardsley    v.    Hall,  36  Conn.  270.  it  was  held   that  such   admissions  might  be 


§  105. ]  ACKNOWLEDGMENT   BY    PART    PAYMENT,  265 

where  a  party  revives  a  debt  barred  by  the  statute  by  paying  it 
into  court,  and  at  the  same  time  refuses  to  pay  interest  upon  it, 
the  payment  of  the  principal  does  not  revive  the  claim  for 
interest.1     A  payment  made   upon  a  note   or   other  obligation, 

proved  although  made  on  Sunday.  As  an  admission  of  payment  is  less  likely 
to  be  misconstrued  or  misstated  than  an  admission  of  the  debt  itself,  there  is  no 
reason  to  question  the  soundness  of  this  interpretation.  The  statute  law  of 
Mississippi,  however,  goes  further,  and  renders  a  payment,  however  proved, 
insufficient,  without  an  express  promise.  Smith  v.  Westmoreland,  12  S.  &  M. 
(Miss.)  663;  Davidson  v.  Morris,  5  id.  564.  Such  is  also  the  case  in  Nevade.  {a) 
It  was  held  in  Eastwood  v.  Saville,  9  M.  &  W.  618,  while  Willis  v.  Newham  was 
still  law,  and  on  its  authority,  that  an  indorsement  of  part  payment  on  the  back 
of  the  instrument  on  which  suit  was  brought  did  not  take  the  case  out  of  the 
statute,  even  when  in  the  handwriting  of  the  defendant,  unless  it  was  also 
signed  by  him.  Yet  it  is  well  settled  in  most  of  the  States,  where  the  statute 
does  not  otherwise  expressly  provide,  on  general  principles,  as  it  was  in  Eng- 
land before  the  passage  of  the  9  Geo.  IV.,  that  an  indorsement  on  a  note  in 
reduction  of  the  debt  may  be  submitted  to  the  jurv  as  a  recognition  of  its  exist- 
ence, whether  such  indorsement  be  made  by  the  plaintiff  or  the  defendant;  in 
the  latter  case,  as  an  admission  of  the  fact  which  it  sets  forth,  Porter  :■.  Blood, 
5  Pick.  (Mass.)  54;  Jones  v.  Jones,  21  N.  H.  219,  and  in  the  former,  as  an  entry 
made  against  interest,  and  consequently  admissible  in  favor  of,  as  well  as 
against,  the  person  by  whom  it  is  made.  Roseboom  v.  Billington,  17  Johns. 
(N.  Y.)  182;  Clapp  v.  Ingersol,  11  Me.  83;  Coffin  v.  Bucknam,  12  id.  471;  Trustees 
v.  Osgood,  12  id.  176;  Addams  v.  Seit?inger,  1  W.  &  S.  (Penn.)  243;  The  State 
Bank  v.  Wood,  5  Ark.  641,  Wood  v.  Wylks,  id.  754;  Bradley  v.  James,  13  C.  B.  ■ 
822;  Concklin  v.  Pearson,  1  Rich.  (S.  C.)  391.  In  order,  however,  to  give  such 
an  indorsement  by  the  plaintiff  the  character  of  an  entry  against  interest,  it 
must  appear  to  have  been  made  before  the  bar  of  the  statute  attached  to  the 
instrument,  Cremer's  Estate,  5  W.  &  S.  331;  Howe  v.  Hathaway,  20  Me.  345; 
Smith  v.  Simmons,  g  Ga.  418;  Alston  v.  The  State  Bank,  4  Ark.  455;  for  other- 
wise he  would  be  able  to  manufacture  evidence.  (/')  Connelly  v.  Pierson,  9  111. 
108;  Whitney  v.  Bigelow,  4  Pick.  (Mass.)  113.  That  part  payment  is  only  prima 
facie  evidence  and  may  be  rebutted,  see  Aldrich  v.  Morse,  28  Vt.  642;  Ayer  v. 
Hawkins,  19  id.  28;  State  Bank  v.  Wooddy,  ro  Ark.  630;  Arnold  v.  Downing, 
11  Barb.  (N.  Y.)  554;  Jewett  v.  Petit,  4  Mich.  50S. 

1  Collyer  v.  Willock,  4  Bing.  313.  And  see  Hollis  v.  Palmer,  2  Bing.  N.  C. 
713,  where  a  payment  of  interest  was  held  not  to  revive  the  principal  under  a 
peculiar  state  of  the  pleadings.  A  part  payment,  accompanied  with  a  denial 
that  more  is  due.  will  not  take  the  balance  out  of  the  statute.  United  States  v. 
Wilder,  13  Wall.  (U.  S.)  254,  where    payment   of  a   promissory  note  "  payable 

(a)  See   Taylor   v.    Hendrie,    8    Nev.  either  that  the  credit  was  so  indorsed 

243.  at    a    time    when    it    was   against    the 

(fi)  In  Missouri,  in  order  to  establish  holder's  interest  to  make  it,  or  that  it 

a  prima   facie   case   from   the    indorse-  was  made  with   the    payor's    consent, 

ment  of   a   credit  on  a  note,  as  taking  McElvain  v.  Garrett,  84  Mo.  App.  300. 

the    case  out  of    the  operation   of    the  See  Mills  v.  Davis,  113  N.  Y.  243. 
statute,   the  plaintiff  must   now  prove 


266  STATUTES   OF   LIMITATION.  [CHAP.   IX. 

before  the  statute  has  run  thereon,  suspends  the  operation  of  the 
statute  from  that  date,  and  starts  it  afresh,  the  former  time  being 
stricken  out ; 1  and  a  payment  made  after  the  statute  has  run  has 
the  same  effect.  The  same  rule  prevails  where  a  part  payment 
of  principal  on  interest  is  made  by  one  joint  debtor  before  the 
statute  has  run.  In  such  case,  the  payment  by  one  prevents  the 
running  of  the  statute  as  to  all.2  But  in  California  it  has  been 
held  that  a  payment  made  before  the  statute  has  run  will  not  take 
the  debt  out  of  the  operation  of  the  statute.3 

SEC.  106.  Rebuttal  of  Implication.  Indeterminate  Debt. — 
Where  a  debtor  at  the  time  of  making  a  payment  to  his  creditor 
expressly  states  that  it  is  not  on  account  of  the  debt  in  question, 
it  is  not  a  part  payment  of  such  debt.  But  the  statement  must 
be  made  at  the  time,  otherwise  any  declarations  on  the  subject 
by  the  debtor  are  only  evidence  of  more  or  less  value  as  to  the 
intention  with  which  the  payment  was  at  the  time  made.  Thus, 
where  a  defendant  in  a  chancery  suit  had  admitted  payment  by 
him  of  certain  half-yearly  payments  down  to  a  period  within  six 
years,  but  alleged  in  it  that  they  were  paid  not  as  interest  on  a 
debt  due  by  him  to  the  plaintiff's  testatrix,  but  by  way  of  annuity 
and  in  pursuance  of  an  arrangement  made  when  a  sum  of  money 
was  given  to  the  defendant,  it  was  held  that  the  jury  were  at  lib- 
erty to  reject  the  lattar  part  of  the  statement,  and  that  it  might 

three  months  after  demand  "  was  sought  to  be  enforced  by  its  holder.  The 
note  was  indorsed  with  payment  of  two  instalments  of  interest,  but  no  interest 
has  since  been  paid  during  a  period  of  upwards  of  twenty  years,  it  was  held 
ihat  payment  of  interest  was  evidence  that  a  demand  for  payment  of  ihe  prin- 
cipal had  been  made  so  as  to  make  time  run  against  the  holder  of  the  note 
under  the  statute.      See  Brown  v.  Rutherford,  14  Ch.  D.  687. 

1  In  Nelson  v.  D'Armand,  13  La.  Ann.  294,  where  an  obligation  was  payable 
by  instalments,  and  all  the  instalments  were  due  when  the  debtor  made  a  pay- 
ment, without  directing  on  which  instalment  the  credit  was  to  be  given,  it  was 
held  that  the  payment  must  be  deemed  to  have  been  made  in  part  payment  of 
all,  and  consequently  that  prescription  was  slopped  as  to  all,  and  started  anew 
from  that  date.  In  De  Camp  v.  Mclntire,  115  N.  Y.  258,  where  the  sole  issue 
presented  by  the  pleadings  was  whether  a  payment  was  made  on  the  note  or  in 
accord  and  satisfaction,  the  evidence  bearing  directly  upon  that  issue,  and  tend- 
ing to  prove  that  the  payment  made  was,  in  truth,  upon  the  debt  which  the  note 
represented,  such  payment  saved  the  bar  of  the  statute. 

5  Burgoon  v.  Hixler,  55  Md.  384:  National  Hank  of  Delavan  v.  Cotton.  53  Wis. 
31;  Schindel  v.  Gates,  46  Md.  604;   Ellicott  v.  Nichols,  7  Gill  (Md.)  85. 

3  Fairbanks  v.  Dawson,  9  Cal.  89. 


§   IO6-IO8.]    ACKNOWLEDGMENT   BY    PART    PAYMENT.  26/ 

be  taken  simply  as  an  acknowledgment  of  payment  of  money,  and 
the  fact  that  it  was  interest  on  the  debt  might  be  proved  by  other 
evidence.1  But  when  the  debt  is  not  for  a  definite  amount,  but 
the  sum  is  indeterminate,  a  payment  may  be  made  not  as  a  part 
payment,  but  as  a  discharge  of  the  whole  in  the  intention  of  the 
payor,  in  which  case  no  promise  to  pay  the  residue  can  be  implied.2 

SEC.  107.  Payment  into  Court.  —  The  payment  of  money  into 
court  will  not  revive  the  right  to  the  residue,  if  any,  of  the  debt, 
inasmuch  as  such  payments  are  commonly  made  as  payments  of 
all  that  is  admitted  by  the  debtor  to  be  due.3  The  rule  was 
formerly  otherwise;4  but  it  is  now  settled  that  a  payment  of 
money  into  court  only  operates  as  an  admission  of  a  liability  to 
the  extent  of  the  amount  so  paid.5  And  now,  under  the  modern 
theory  as  to  the  office  and  effect  of  these  statutes,  such  a  pay- 
ment after  action  commenced  would  be  too  late.6 

SEC.  108.  Identity  of  Debt. — There  must,  of  course,  be 
reasonable  evidence  of  the  identity  of  the  debt  sued  for  with 
that  on  account  of  which  the  part  payment  has  been  made.7 
Where,  under  an  agreement,  there  are  separate  causes  of  action 
to  recover  two  sums  secured  by  the  same  bond,  payment  on 
account  of  one  of  such  sums  will  not  revive  the  debt  as  to  the 
other  sum.8  Where  a  payment  appears  to  have  been  made  on 
account  of  an  existing  debt,  the  jury  are  warranted  in  considering 

1  Baildon  v.  Walton,  1  Exch.  617. 

2  Burn  v.  Boulton,  2  C.  B.  476;  Waugh  v.  Cope,  6  M.  &  W.  824.  Where  a 
debtor  transmitted  a  draft  to  his  creditor,  which  was  received  by  him,  the  debtor 
not  making  any  allusion  to  the  account,  or  of  any  debt  whatever,  it  was  held 
that  it  did  not  operate  as  a  part  payment,  so  as  to  remove  the  bar  of  the  statute. 
Hussey  -'.  Burgwyn,  6  Jones  (N.  C.)  L.  385.  Nor  does  a  special  payment  have 
that  effect.  In  order  to  make  a  payment  or  account  effectual  to  save  the  entire 
account,  it  must  be  made  generally.  If  il  is  made  specifically  to  liquidate 
particular  items,  it  will  not  take  other  items  out  of  the  statute.  Peck  v.  New 
York,  etc.,  Steamship  Co.,  5  Bosw.  (N.  Y.)  226. 

3  Long  v.  Greville,  3  B.  &  C.  10;   Reid  v.  Dickons,  5  B.  &  Ad.  499. 

4  Dyer  v.  Ashton,  1  B.  &  C.  3. 

5  Kingham  v.  Robins,  5  M.  &  W.  94;  Lechmere  v.  Fletcher,  1  C.  &  M.  623; 
Reid  v.  Dickons,  supra;  Cox  v.  Parry,  r  T.  R.  464. 

6  Waters  v.  Tomkins,  2  C.  M.  &  R.  723. 
1  Ashlin  v.  Lee,  W.  N.  1875,  42. 

'  Evans  v.  Davies,  4  Ad.  &  El.  840. 


268  STATUTES   OF   LIMITATION.  [CHAP.   IX. 

it  as  applied  to  the  payment  of  the  particular  debt  sued  for, 
unless  there  is  evidence  of  any  other  existing  debt. 

SEC.    109.  Question  for  the  Jury The    question   whether  a 

payment  made  by  a  debtor,  who  afterwards  seeks  to  take  advan- 
tage of  the  statute,  was  made  on  account  of  and  in  part  pay- 
ment of  the  particular  debt  is  for  the  jury,  subject,  of  course, 
to  the  direction  of  the  court.  In  an  English  case,1  where  there 
were  two  distinct  debts  due  from  the  debtor,  a  general  payment 
by  him  not  specifically  appropriated  as  a  payment  upon  either 
claim  was  held  to  have  no  effect  upon  removing  the  statute  bar  as 
to  either;  and  the  same  principle  was  adopted  as  to  an  acknowl- 
edgment in  Connecticut ; 2  but  later,  where  there  were  two  distinct 
debts  against  the  defendant,  it  was  there  held  that  the  ques- 
tion whether  an  acknowledgment  was  made  with  reference  to  a 
particular  debt  was  for  the  jury;3  and  the  rule  applies  with  equal 
force  to  an  acknowledgment  arising  from  a  part  payment.4  In 
a  later  English  case,5  the  doctrine  of  Burn  v.  Boulton  was  some- 
what restricted,  and  was  held  applicable  only  in  cases  where  the 
two  debts  are  entirely  distinct;  and  in  such  a  case,  where  a  pay- 
ment is  made  by  the  debtor  without  any  directions  as  to  its  appli- 
cation, the  question  as  to  whether  it  removed  the  statute  bar  as 
to  either  must  depend  upon  the  circumstances  of  the  case.6  and 
that  it  was  properly  a  question  for  the  jury  whether  a  payment  so 
made  was  made  generally  on  account  of  whatever  might  be  due, 
and,  if  so,  that  both  debts  would  be  revived  thereby. 

Sec.  1 10.  General  Rule  as  to  Appropriation  of  Payments.— 
Where  a  debtor  makes  a  payment  to  a  creditor  to  whom  he  is 
owing  several  distinct  debts,  the  general  rules  as  to  the  appropri- 
ation of  the  money  are:  1st,  That  it  shall  be  applied  as  the 
debtor  directed  at  the  time  of  payment,  in  accordance  with  the 
maxim,  quicquid solvitur  secundum  animnn  solventis;1    2dly,  that 

1  Burn  7'.  Boulton,  2  C.  B.  485. 

•'  Buckingham  v.  Smith,  23  Conn.  453. 

3  Cook  v.  Martin,  2g  Conn.  63. 

4  See  also  Bigelow  v.  Whitney,  4  Pick.  (Mass.)  112;  Buckingham  v.  Smith, 
supra;  Coles  v.  Kelsey,  2  Tex.  541;  Guy  v.  Tarns,  6  Gill  (Md.)  87;  Shaw  v. 
Newell,  2  R.  I.  264. 

•  Walker  v.  Butler,  6   El.  &  Bl.  506. 
6  See  Cook  v.  Martin,  supra. 

1  McKee  v.  Stroup,  1  Rice  (S,  C.)  291;  Jackson  v.  Bailey,  12  111.  rsg;  Sher- 
wood ?■.  1  Plight,  26  Conn.  432;  Read  v.  Boardman,  20  Pick.  (Mass.)  441;  Tread- 


§    IIO.]  ACKNOWLEDGMENT    BY    PART    PAYMENT.  269 

if  the  debtor  does  not  direct  as  to  its  application,  the  creditor 
may  do  so  at  any  time  before  judgment,  under  the  maxim, 
quicquid  recipitur,  rccipitur  in  modum  recipientis;  1-  and,  3dly,  if 
neither  of  them  apply  the  payment  to  any  particular  claim,  the 
law  will  apply  it  to  the  oldest  debt,  or  as  may  be  just.2  (a)  The 
creditor   may  appropriate   a   payment   not   appropriated   by   the 

well  v.  Moore,  34  Me.  112;  Semmes  v.  Boykin,  27  Ga.  47;  Mitchell  v.  Dall,  4 
H.  &  G.  (Md.)  159;  Martin  v.  Draher,  5  Watts  (Penn.)  544;  Pindall  v.  Bank  of 
Marietta,  10  Leigh  (Va.)  484;  Wetherell  v.  Joy,  40  Me.  325;  Black  v.  Schouler,  2 
McCord  (S.  C.)  292;  Calvert  v.  Carter,  18  Md.  73;  Irwin  v.  Paulett,  1  Kan.  418; 
Taylor  v.  Sandiford,  7  Wheat.  (U.  S.)  13;  Solomon  v.  Dreschler,  4  Minn.  278; 
Jones  v.  Williams,  39  Wis.  300;  Whitaker  v.  Grover,  54  Ga.  174;  Bonaffe  v, 
Woodbury,  12  Pick.  (Mass.)  463;  Levystein  v.  Whitman,  59  Ala.  345;  Adams 
Exp.  Co.  v.  Black,  62  Ind,  128.  But  the  appropriation  must  be  made  by  the 
debtor  at  the  time  of  payment,  and  he  cannot,  after  the  creditor  has  applied  it, 
change  the  application  of  it.  Haynes  v.  Waite,  15  Cal.  446;  Hill  v.  Souther- 
land,  1  Wash.  (Va.)  12S. 

1  The  rule,  as  stated  in  the  text,  is  well  established.  Sawyer  v.  Tappan,  14 
N.  H.  352;  Bird  v.  Davis,  14  N.  J.  Eq.  467;  Hargroves  v.  Cooke,  15  Ga.  321; 
Bobe  v.  Stickney,  36  Ala.  482;  Middleton  v.  Frame,  21  Mo.  412;  Wait  v.  Hoch, 
25  Penn.  St.  411;  United  States  v.  Bradbury,  Davies  (U.  S.)  146;  Logan  v. 
Mason,  6  W.  &  S.  (Penn.)  9;  Johnson  v.  Johnson,  30  Ga.  S57;  Sickles  v.  Ayres, 
6  N.  J.  Eq.  29;  Holmes  v.  Pratt,  34  Ga.  558;  Fargo  v.  Buell,  21  Iowa,  292; 
Crisler  v.  McCoy,  33  Miss.  445;  Livermore  v.  Rand,  26  N.  H.  85;  Howland  v. 
Rench,  7  Blackf.  (Ind.)  236.  But  where  interest  is  due,  the  payment  must  be 
first  applied  to  the  liquidation  of  it.  Johnson  v.  Robbins,  20  La.  Ann.  569; 
Mills  v.  Saunders,  4  Neb.  190.  But  if  there  is  anything  in  the  circumstances 
attending  the  payment  or  the  debt  itself,  from  which  the  intention  of  the  debtor 
may  be  implied,  his  intention  must  prevail.  Howland  v.  Rench,  7  Blackf. 
(Ind.)  236;  West  Branch  Bank  v.  Moorehead,  5  W.  &  S.  (Penn.)  542;  Mclntyre 
v.  Cross,  iS  Vt.  451;  Cass  v.  McDonald,  39  id.  65.  See  Hill  v.  Robbins,  22 
Mich.  475;  Champenois  v.  Fort,  45  Miss.  355;  Howard  v.  McCall,  21  Gratt. 
(Va.)  205;  Waterman  v.  Younger,  26  Ark.  513;  Genin  v.  Ingersoll,  11  W.  Va. 
549;  St.  Albans  v.  Failey,  46  Vt.  448;  Langdon  v.  Bowen,  id.  512;  Whittaker  v. 
Grovtr,  54  Ga.  174;  Jones  v.  Williams,  39  Wis.  300. 

5  Leef  v.  Goodwin,  Taney,  460;  Plummer  v.  Erskine,  58  Me.  5q;  Mueller  v. 
Wiebracht,  47  Mo.  468;  Mathews  v.  Switzler,  46  id.  301;  Bean  v.  Brown,  54  N. 
H.  395;  King  v.  Andrews,  30  Ind.  429;  Nutall  v.  Browning,  5  Bush(Ky.)n; 
McDaniel  v.  Barnes,  id.  183;  Trullinger  v.  Kofoed,  7  Oregon,  228;  Harding  v. 
Tifft,  75  N.  Y.  461.  The  debtor's  intentions,  if  not  expressed,  cannot  be  con- 
sidered. Brice  v.  Hamilton,  12  S.  C.  32.  Bui  in  Wittowsky  v.  Reid,  82  N.  C. 
116,  ii  was  held  that  his  intention  might  be  proved  by  directions  given  either 
previously  or  subsequently.  This  rule  is  inconsistent  with  the  general  rule, 
and  is  not  sustainable  as  to  directions  given  by  the  debtor  after  the  payment 
has  been  made;  and  a  contrary  doctrine  was  held  in  National  Mahaiwe  Bank 
v.  Peck,  127  Mass.  298.     After  the  creditor  has  made  the  application  he  cannot 

(a)  See   Sanborn   v.  Cole  (Vt.),  14  L.  R.  A.  208,  and  n. 


270  STATUTES   OF   LIMITATION.  [CHAP.    IX. 

debtor  .0  a  debt  barred  by  the  statute,1  or  it  seems,  according  to 
some  of  the  cases,  that  where  there  are  several  notes  barred  by 
the  statute,  and  a  general  payment  is  made,  he  may  so  appro- 
priate the  money  as  to  take  them  all  out  of  the  statute.2  But  in 
New  York,3  the  creditor  cannot  make  such  an  application  of  a 
general  payment,  upon  a  debt  barred  by  the  statute,  unless  the 
debtor  consents  thereto,  and  it  is  presumed  that  the  money  was 
paid  upon  the  debts  not  barred  until  the  contrary  is  shown ;  and 
in  Vermont,  where  the  plaintiff  held  notes  against  the  defendant, 
which  were  dated  more  than  six  years  before  the  commencement 
of  his  action,  and  the  jury  found  the  fact  that  within  six  years 
the  defendant  made  a  general  payment  to  the  plaintiff  on  account 
of  some  one  or  more  of  the  notes,  or  of  the  indebtedness  mani- 
fested by  them,  it  was  held  that  a  promise  of  further  payment 
must  be  implied.  It  is  not  essential  that  the  defendant  should 
have  recollected  the  giving  of  the  notes  at  the  time  of  making 
the  payment,  if  he  was  aware  of  the  indebtedness  for  which  they 
were  given,  and  acted  with  reference  to  it;  and  if  a  debtor  owing 

change  it,  even  at  the  request  of  the  debtor,  if  other  parties  are  affected 
thereby.  Harding  v.  Wormley,  8  Baxter  (Tenn.)  578. 

1  Harrison  v.  Davies,  23  La.  Ann.  216.  If  payments  by  a  debtor  to  a  creditor 
on  account  of  his  indebtedness  generally,  which  consists  of  various  promissory 
notes  payable  at  various  times,  are  made  before  one  of  the  notes  in  barred  by 
the  statute,  they  may  be  applied  afterwards  by  the  creditor  to  that  note,  and 
when  so  applied  take  effect  from  their  respective  dates  and  not  from  the  date  of 
the  application.  Ramsay  z\  Warner,  97  Mass.  8.  A  payment  on  account,  in 
order  to  take  the  whole  account  out  of  the  statute,  must  be  made  generally. 
A  payment,  made  to  be  specifically  applied  to  particular  items,  will  not  lake  the 
other  items  out  of  the  statute.  Peck  v.  New  York,  etc.,  Steamship  Co.,  5  Bosw. 
(N.  Y.)  226.  The  defendant  was  allowed  to  prove  thai,  when  he  made  the  pay- 
ment, he  declared  that  he  "  owed  the  plaintiff  nothing,"  but  that  he  preferred 
paying  it  to  having  any  further  trouble  about  it,  in  Davis  v.  Amy,  2  Grant's 
Cas.  (Penn.)  412.  Where  the  holder  of  a  promissory  note  delivered  it  to  his 
creditor  as  collateral  security  for  a  mutual  and  open  account  current,  with  the 
understanding  that  any  sum  collected  on  it  should  be  applied  to  the  accounts 
and  afterwards  an  agent  of  the  creditor  collected  and  paid  to  him  a  dividend 
on  the  note  from  the  estate  of  the  maker  in  isolvency,  which  payment,  on  the 
day  thereof,  the  creditor  applied  to  the  account,  it  was  held  that  the  statute  did 
not  begin  to  run  on  the  account  until  after  that  day.  Whipple  v.  Blackington, 
97  Mass.  476. 

1  Jackson  v.  Burke.  1  Dill.  (U.  S.)  311;  Mills  v.  Fowkes,  5  Binf>.  N.  C.  455. 
ee  Reed  v.  Hurd,  7  Wend.  (N.  Y.)  408;  Heath  v.  Grenell,  61  Barb.  (N.  Y.) 
190,  where  it  was  held  that  the  creditor  could  not  apply  a  general  payment  in 
discharge  of  a  debt  barred  by  the  statute,  without  l.he  debtor's  assent. 

■■Ibid. 


§  110.]  ACKNOWLEDGMENT    BY    PART    PAYMENT.  2/1 

several  demands  to  his  creditor  makes  a  general  payment,  and 
neglects  to  direct  its  application,  the  right  of  designation  belongs 
to  the  creditor;  yet  he  must  make  an  application  to  which  the 
debtor  could  not  justly  or  reasonably  object.  Therefore,  where 
the  demands  consisted  of  three  notes,  all  of  which  were  barred  by 
the  statute,  and  the  debtor  made  a  general  payment,  it  was  held 
that  the  creditor  might  apply  it  upon  which  note  he  pleased,  and 
that  he  might  indorse  it,  if  he  so  chose,  upon  the  largest  note, 
although  it  was  subsequent  in  date  to  the  others,  and  that  the 
effect  would  be  to  take  the  note  upon  which  the  application  was 
made  out  of  the  statute,  but  that  he  could  not  divide  the  pay- 
ment among  all  the  notes,  indorsing  a  part  on  each,  and  claim 
that  all  were  thereby  taken  out  of  the  operation  of  the  statute.1 
The  right  to  make  the  appropriation,  as  stated,  belongs  in  the 
first  instance  to  the  debtor;  but  if,  at  the  time,  he  neglects  to 
make  it,  the  right  passes  to  the  creditor,  and  the  debtor  cannot 
afterwards  claim  it.2  But  the  rule  only  applies  to  lawful  debts.3 
In  the  case  of  running  accounts,  in  the  absence  of  special  circum- 
stances which  ought  to  control,  the  payment  will  be  applied  to 
extinguish  the  debts  according  to  priority  of  time.4    In  England, 

1  Ayer  v.  Hawkins,  19  Vt.  26.  A  general  payment  made  by  a  debtor  to  a 
creditor,  where  there  are  two  or  more  obligations,  one  of  which  is  barred  by 
the  statute,  may  be  applied  by  the  creditor  upon  the  obligation  which  is  barred, 
and  in  Vermont  (Sanborn  v.  Cole,  14  L.  R.  A.  (Vt.)  208;  Robie  v.  Briggs,  59  Vt. 
448;  Wheeler  v.  House,  27  Vt.  735),  it  removes  the  statutory  bar  as  to  the  entire 
debt;  and  this  rule  has  been  adopted  in  Missouri.  Beck  v.  Haas,  31  Mo  App. 
180.  But  in  England,  while  it  is  held  that  the  creditor  may  apply  a  general 
payment  to  liquidate  a  debt  against  which  the  statule  has  run,  yet  such  appli- 
cation does  not  remove  the  bar  as  to  the  balance  of  the  debt.  Mills  v.  Fowkes, 
5  Bing.  N.  C.  455;  Nash  v.  Hodgson,  6  De  G.  M.  &  G.  474.  Such  also  is  the 
rule  in  Massachusetts  and  Maine.  Blake  v.  Sawyer,  83  Me.  129;  Pond  v.  Wil- 
liams, 1  Gray  (Mass  )  630;   Ramsay  v.  Warner,  97  Mass.  S,  13. 

2  Bell  v.  Radcliff,  32  Ark.  645.  If  before  payment  is  made  the  debtor  expresses 
a  wish  as  to  its  application,  such  an  expression  involves  a  direction  by  him. 
and  he  is  entitled  to  the  benefit  of  the  application  requested.  Hansen  v. 
Rounsavell,  74  111.  23S. 

3  Duncan  v.  Helm,  22  La.  Ann.  41S;  McCansland  v.  Ralston,  12  Nev.  195; 
Storer  v.  Haskell,  50  Vt.  341.  But  if  the  debtor  directed  or  consented  to  the 
application  of  the  payment  on  an  illegal  debt,  the  court  will  not  interfere. 
Feldman  ■v.  Gamble,  26  N.  J.  Eq.  494. 

4Sprague  v.  Hazelwinkle,  53  111.  419:  Moore  v.  Gray,  22  La.  Ann.  2S9; 
Crompton  v.  Pratt,  105  Mass.  255;  Allen  v.  Brown,  39  Iowa,  330;  Worthley  v. 
Emerson,  116  Mass.  374.  Even  where  a  part  of  the  items  accrued  before 
and  a  part  afler  the  defendant  was  discharged  in   bankruptcy,   of   which   the 


272  STATUTES   OF    LIMITATION.  [CHAP.   IX. 

it  has  been  held  that  where  there  are  several  debts,  some  barred 
and  some  not,  the  effect  of  the  payment  of  principal  generally 
will  be  to  take  any  debt  not  then  barre  dout  of  the  statute,  but 
will  not  revive  a  debt  which  is  barred;  and  the  inference  will  be 
that  the  payment  is  to  be  attributed  to  those  not  barred.1  Thus, 
in  the  case  last  referred  to  there  were  three  notes  executed,  two  of 
which  were  barred  and  one  was  not,  and  a  payment  was  made  of 
a  small  sum  on  account  generally;  it  was  held  the  payment  did 
not  revive  the  remedy  on  the  two  older  debts,  but  did  prevent 
time  from  continuing  to  run  in  the  case  of  the  latter.2  Where 
there  are  two  distinct  debts,  it  seems  that  an  unappropriated 
payment  may  revive  neither.5      If  there  are  several  distinct  debts, 

creditor  had  no  notice,  it  does  not  change  the  rule.      Hill  v.  Robbins,  22  Mich. 

475- 

1  Nash  v.  Hodgson,  6  De  G.  M.  &  G.  474;   1  Kay,  650. 

s  Ibid. 

3  Burn  v.  Boulton,  2  C.  B.  476.  If  two  demands  were  due  at  the  time  of  pay- 
ment, so  thai  it  is  doubtful  to  which  the  payment  applied,  such  part  payment 
will  not  remove  the  statute  as  lo  either.  Armistead  v.  Brooke,  iS  Ark.  521; 
Burr  v.  Burr,  26  Penn.  St.  284.  In  Nash  v.  Hodgson,  6  De  G.  M.  &  G.  474, 
where  there  were  three  notes,  upon  two  of  which  the  statute  had  run,  and  a 
sum  of  money  was  paid  on  account  of  interest  generally,  but  less  than  the 
amount  due  on  the  note  not  barred,  it  was  held  that  the  payment  must  attach 
to  that  note.  And  it  seems  that  the  payment  cannot  be  distributed  among  all 
of  them,  so  as  to  remove  the  statutory  bar  as  to  those  upon  which  the  statute 
has  run,  as  in  such  cases  it  will  be  presumed  that  the  payment  was  intended  to 
apply  to  the  subsisting  debt.  Lowery  v*  Gear,  32  111.  382;  Pond  v.  Williams, 
1  Gray  (Mass.)  630.  But  where  there  are  several  debts,  none  of  which  are 
barred,  a  general  payment  keeps  on  foot  the  debt  upon  which  it  is  applied. 
Ramsay  v.  Warner,  97  Mass.  8;  Briggs  v.  Williams,  2  Vt.  283;  Harker  v.  Con- 
rad, 12  S.  &  R.  (Penn.)  301;  Starett  v.  Barber,  20  Me.  457;  Oliver  v.  Phelps,  20 
N.  J.  L.  180;  Selleck  v.  Turnpike  Co.,  13  Conn.  453;  Robinson  v.  Doolittle.  12 
Vt.  246;  McFarland  v.  Lewis,  3  111.  344;  White  v.  Trumbull,  15  N.  J.  L.  315; 
Callahan  v.  Boazman,  21  Ala.  246;  Benny  v.  Rhodes,  18  Mo.  147;  Proctor  v. 
Marshall,  18  Tex.  63;  Hamer  v.  Kirkwood,  25  Miss.  95;  Thompson  v.  Phelan, 
22  \\  II.  339.  If  money  is  paid  on  an  account,  and  no  specific  applicalion  of  it 
is  made  by  either  party,  the  law  will  apply  it  to  the  payment  of  the  oldest  items. 
Harrison  v.  Johnson,  27  Ala.  445;  Fairchild  v.  Holly,  10  Conn.  175;  Shedd  v. 
Wilson,  21  Vt.  478;  Thurlovv  v.  Gilmorc,  40  Me.  378;  Harrison  v.  Johnson,  27 
Ala.  445;  Home  v.  Planters'  Bank,  32  Ga.  1.  But  if  some  items  are  due.  and 
others  not,  the  application  must  be  made  to  those  which  are  due.  Effinger  v. 
1  [c ulerson,  33  Miss.  449.  If  money  is  paid  generally  upon  debts  which  are 
1  ntly  secured,  the  law  will  apply  it  in  discharge  of  the  debts  forwhich  the 
rily  is  most  precarious.  Chester  v.  Wheelwright,  15  Conn.  562;  Baine  v. 
Williams,  18  Miss.  113;  Smith  v.  Wood,  7  N.  J.  Eq.  74;  Bosley  v.  Porter,  4  J.  J. 
Mar.  (Ky.)62i;  Gwinn  v.  Whitaker,  1    H.  <S:  J.  (Md.)  754;  State  v.  Thomas,  11 


§   III.]  ACKNOWLEDGMENT    BY    PART    PAYMENT.  2/3 

and  a  payment  is  made  without  any  direction  as  to  how  it  shall 
be  applied,  and  the  creditor  applies  it  at  once  to  the  payment  of 
a  debt  which  is  barred,  it  will  not  take  the  balance  of  that  debt 
out  of  the  statute ; l  nor  where  there  are  several  distinct  notes  or 
other  obligations,  which  is  a  part  of  a  series,  will  the  payment  of 
one  remove  the  statute  as  to  the  others.2 

SEC.  hi.  Oral  Proof  of  Part  Payment.  —  As.  previously  stated, 
it  was  originally  held  in  England  that  the  evidence  of  part  pay- 
ment to  avoid  the  statutes  must  be  in  writing,  signed,  it  being 
considered  that  to  allow  a  debt  to  be  revived  on  any  less  strict 
evidence  of  a  part  payment  was  within  the  mischief  of  the  act.3 
But  this  doctrine,  after  being  frequently  questioned,4  was  eventu- 
ally overruled,5  and  now  a  part  payment  for  the  purposes  of  the 
statute  may  be  proved  orally  or  otherwise,  as  any  other  fact. 
The  same  rule  prevails  in  this  country,  except  in  Nevada,  where 
the  statute  requires  evidence  in  writing,  signed  by  the  party 
charged.6 

Ired.  (N.  C.)  L.  251:  and  if  interest  is  due,  the  payments  will  first  be  applied  in 
discharge  of  it.  McFadden  v.  Fortier,  20  111.  509;  Hearn  v.  Cutberth,  10  Tex. 
216;  Lush  v.  Edgerton,  13  Minn.  210;  and  the  balance  will  be  applied  upon  the 
prim  ipal  as  will  be  most  beneficial  to  the  creditor.  Estebene  v.  Estebene,  5  La. 
Ann.  738;  Hampton  v.  Dean,  4  Tex.  455;  Jencks  v.  Alexander,  11  Paige  (N.  Y.) 
Ch.  619. 

1  Pond  v.  Williams,  1  Gray  (Mass.)  630. 

8  Brown  v.  Johnson,  20  La.  Ann.  486. 

3  Willis  v.  Newham,  3  Y.  &  J.  518;  Bayley  v.  Ashlon,  12  A.  &  E.  493;  Maghee 
v.  O'Neill,  7  M.  &  W.  531;   Eastwood  v.  Saville,  9  id.  615. 

4  See  per  Lord  Denman  in  Trentham  v.  Deverill,  3  Bing.  N.  C.  397:  "  If  I 
were  now  called  on  to  put  a  construction  upon  the  act,  I  should  be  of  opinion 
that  any  proof  of  payment  was  sufficient;  "  and  a  similar  remark  of  Lord 
Abinger  in  Maghee  v.  O'Neill. 

5  Cleave  v.  Jones.  6  Exch.  573.     See  Edwards  v.  Janes,  1  Kay  &  J.  534. 

6  Williams  v.  Gridley,  9  Met.  (Mass.)  482;  Sibley  v.  Lambert,  30  Me.  253.  In 
Shumate  v.  Williams,  34  Ga.  245,  the  plaintiff,  in  order  to  save  a  note  from  the 
operation  of  the  statute,  relied  upon  certain  indorsements  made  thereon  in  1S57, 
which  was  within  the  period  of  limitation,  accompanied  by  parol  proof  that 
such  payments  were  in  fact  made;  but  the  court  held  that,  under  the  statute 
requiring  an  acknowledgment  in  writing,  signed,  etc.,  such  payments  were  not 
sufficient.  See  also  Waterman  v.  Burbank,  8  Met.  (Mass.)  352,  where  mere 
proof  of  an  indorsement  mi.de  by  the  payee  was  held  not  sufficient.  Where  a 
debt  exists  against  a  person,  and  the  parties  concede  that  part  of  i(  should  be 
paid  by  another  person,  and  that  such  part  is  really  the  debt  of  such  person, 
the    payment   by   such   person  of   such   part  of   the   debt  does  not  remove  the 

^statute  bar  as  to  the  balance  of  the  claim,  as  it  is  not  a  part  payment  of  such 
[stats,  of  lim.  —  18] 


274  STATUTES   OF   LIMITATION.  [CHAP.   IX. 

SEC.    112.  Part  Payment  need  not  be  in  Money.  —  It    is    not 
necessary,  for  the  purposes  of   the  statute,  that  a  part  payment 
of  principal  or  interest  should  be  made  in  actual  money.      Thus, 
a  payment  in  goods  may  be  a  sufficient  part  payment, (a)  and  if 
parties  to  a  bill  of   exchange   agree  that  goods   shall  be  supplied 
and  taken  accordingly,  that   amounts   to  a   part  payment.1     So 
the   indorsement   and   delivery    by    the    debtor    of    a  note  of   a 
third    party,    payable    at    a    future    time,    either    in     payment 
of,   or    as    collateral    security    for,   his    indebtedness    to    another 
has  been  held   to   operate   as  a  payment   sufficient   to   take  the 
case  out  of  the  statute.3     But  where   goods   are   delivered    to  a 
creditor  to   be  sold,  and   the   proceeds   applied  in   liquidation  of 
the  debt  as  far  as  they  will  go,  the  goods  must  be  sold,  and  the 
proceeds  applied  upon  the  debt  within  a  reasonable  time.      Thus, 
where  goods  were  pledged  by  the  maker  of  a  promissory  note  to 
the  payee,  with  power  to   sell   the  same  and  apply  the  proceeds 
on  the  note,  and  the  payee  held    the   goods  six  years  before  he 
sold  them  and  made  the  application  on  the  note,  it  was  held  that 
the  sale  and  application  was  not  made  in  a  reasonable  time,  and 
that  the  application   of   the   proceeds   of   such   sale  on  the  note 
would  not  save  it  from  the  operation   of   the  statute.3     And  the 
same  rule  is  applicable  where  the  note  of  a  third  person  is  given 
to   a   creditor    as  collateral,    with    instructions    "  to   collect   the 
same  and  apply  the  proceeds  to  the  payment  "   of   the   note  in 
suit.      In  such  a  case,  if  the  creditor  accepts  the  note,  he  takes 
it  subject  to  the  instructions;  and  as  soon  as  the  note  is  collected, 
the  proceeds  are  to  be  applied    upon   the   note  at  that  time,  and 
that   proof   of   payment   on  the   collateral   note  would  operate  as 
proof  of  payment  on  the  note  to  which  such  collateral  note  was 
to  be  applied.     But  this  was  held  subject  to  the  exception  that 

debt  but  only  a  payment  of  the  debt  of  such  third  person.  Carlisle  v.  Morris, 
8  Ind.  421. 

1  Hart  v.  Nash,  2  C.  M.  &  R.  337- 

'Smith  v.  Ryan,  39  N.  Y.  Super.  Ct.  489. 

3  Porter  v.  Blood,  5  Pick.  (Mass.)  54.  See  also  Lyon  v.  State  Bank,  12  Ala. 
508,  where  cotton  was,  with  the  consent  of  the  sureties  on  a  note,  deposited  as 
collateral  thereto,  with  power  to  sell  and  apply  the  proceeds  on  the  note;  and 
although  the  cotton  was  sold,  and  the  proceeds  applied  on  the  note  after  its 
maturity  and  before  the  statute  had  run  thereon,  it  was  held  that  it  did  not 
suspend  the  running  of  the  statute  as  to  the  balance. 

(a)  Wclford  V,  Cook.  71  Minn.  77. 


§  1 1 2.  J  ACKNOWLEDGMENT   BY    PART   PAYMENT.  275 

the  creditor  could  not  unreasonably  delay  the  collection,  and  that, 
if  he  did,  the  proceeds  could  not  be  considered  as  applied  upon 
the  note  in  suit  by  the  direction  of  the  debtor.1  Where  the 
note  of  a  third  person  is  given  as  collateral,  the  proceeds  to  be 
applied  upon  the  principal  note,  the  receipt  of  a  dividend  on  the 
note  takes  the  principal  debt  out  of  the  statute  from  the  time  of 
the  receipt  thereof.2  If  a  check  is  given  as  collateral  to  a  note, 
it  does  not  operate  as  a  payment  until  collected.3  In  all  cases 
where  goods  or  securities  are  given  as  collateral,  with  power  to 
sell  or  collect,  and  apply  the  proceeds  in  liquidation  of  a  debt, 
the  power  must  be  exercised  within  a  reasonable  time  in  view  of 
the  circumstances,  or  the  application  of  the  proceeds  upon  the 
debt  will  not  save  it  from  the  operation  of  the  statute,4  else  in 
such  cases,  by  unreasonable  delay,  a  creditor  could  keep  his  debt 
on  foot  indefinitely.  And  generally  it  may  be  said  that  where  a 
thing  is  received  upon  agreement  in  reduction  of  a  debt,  that  is 
a  payment  sufficient  to  take  the  debt  out  of  the  statute.5  The 
giving  of  a  note  for  interest  accrued  is  a  sufficient  part  payment,6 
or  a  credit  given  therefor  in  account.7  In  England,  where  it  was 
agreed  between  the  plaintiff  and  defendant  that  the  defendant, 
instead  of  paying  interest  due  by  him,  should  afford  maintenance 
to  the  plaintiff's  child,  it  was  held  that  the  maintenance  of  the 
child  amounted  to  a  part  payment.8     But  notwithstanding  the 

1  In  Haven  v.  Hathaway,  20  Me.  345,  in  an  action  upon  a  note  payable  more 
than  six  years  before  the  commencement  of  the  action,  it  appeared  that  the 
defendant  had  delivered  another  note  to  the  plaintiff,  "  to  collect  the  same  and 
apply  the  proceeds  to  the  payment  "  of  the  note  in  suit,  and  the  plaintiff  had 
accepted  it,  it  was  held  that  he  was  bound  to  comply  with  these  directions; 
that,  as  soon  as  he  collected  money  upon  it,  he  was  obliged  to  consider  it  a 
payment  of  so  much  of  the  note  in  suit;  and  that  proof  of  payment  on  the  col- 
lateral note  would  operate  as  proof  of  payment  of  the  same  sum  on  ihe  note  in 
suit.     Butts  v.  Perkins,  41  Barb.  (N.  Y.)  509;  Turney  v.  Dodwell,  3  El.  &  Bl.  136. 

'Whipple  v.  Blackington,  97  Mass.  476.  Either  a  payment  in  money,  or 
giving  security  for  a  part  or  the  whole  of  a  debt  is  sufficient,  Manderston  v. 
Robertson,  4  M.  &  Ry.  410;  Balch  v.  Onion,  4  Cush.  (Mass.)  559;  Whitney  v. 
Bigelow,  4  Pick.  (Mass.)  no;  or  giving  a  note  as  collateral.  Ilsley  v.  Jewett, 
2  Met.  (Mass.)  168. 

3  Garden  v.  Bruce,  L.  R.  3  C.  P.  300. 

4  Porter  v.  Blood,  supra;  Haven  v.  Hathaway,  supra. 

5  Hooper  v.  Stephens,  4  A.  &  E.  71. 

6  Wenman  v.  Mohawk  Ins.  Co.,  13  Wend.  (N.  YO267;  Sigourney  v.  Wetherell, 
6  Met.  (Mass.)  553. 

7  Smith  v   Ludlow,  6  Johns.  (N.  Y.)  267. 

8  Bodger  v.  Arch,  10  Exch.  333. 


276  STATUTES   OF   LIMITATION.  [CHAP,  IX. 

doctrine  of  these  cases,  under  the  rule  that  a  payment  must  be 
made  under  such  circumstances  that  a  new  promise  can  be 
implied  to  pay  the  balance  of  the  debt,  it  is  not  believed  that  the 
application  by  the  creditor  of  money  received  upon  a  collateral, 
whether  with  or  without  express  authority  from  the  debtor  so  to 
do,  can  have  the  effect  to  remove  or  suspend  the  operation  of 
the  statute,  unless  the  debtor  subsequently  ratified  and  adopted 
the  creditor's  act,  for  the  reason  that,  while  the  debtor  may  con- 
stitute the  creditor  his  agent  for  the  sale  of  the  collateral,  or 
the  collection  of  the  money  due  upon  it,  he  cannot  authorize  the 
creditor  to  make  for  him,  to  Jiimself  {the  creditor)  a  new  promise 
to  pay  the  debt;  and  this  is,  and  necessarily  must  be,  the  tendency 
of  the  later  cases.1 

Sec.  113.  Test  as  to  what  amounts  to  Part  Payment.  —  It  is 
not  necessary  that  either  money  or  goods  should  actually  pass, 
for  payment  may  be  made  by  settlement  of  account.  "  If  two 
persons  meet,  and  one  says  to  the  other,  I  owe  you  so  much, 
and  you  owe  me  so  much,  but  instead  of  an  exchange  of  money 
they  agree  to  settle  the  account  by  setting  off  one  against  the 
other,  and  that  is  done,  that  is  a  payment  by  settlement  of 
account."2  So,  too,  a  creditor  may,  by  the  consent  of  the 
debtor,  give  him  a  portion  of  the  debt,  and  a  credit  entered  in 
pursuance  thereof  will  be  effectual  as  a  part  payment.3  The 
true  test  as  to  what  transactions  will  amount  to  a  part  pay- 
ment for  the  purposes  of  avoiding  the  statute  appears  to  be,4 
that  any  facts  which  would  prove  a  plea  of  payment  of  interest 
or  principal  in  an  action  brought  to  recover  either  would  amount 
to  a  payment   sufficient   to   bar  the   statute.5     If  by  agreement 

1  Brown  v.  Latham,  58  N.  H.  30;  Smith  v.  Ryan,  66  N.  Y.  352;  Harper  v. 
Fairley,  53  id.  442. 

2  Amos  v.  Smith,  1  H.  &  C.  238.     See  Baker  v.  Baker,  55  L.  T.  726. 

8  Where,  after  a  debt  due  to  the  plaintiff  by  his  son  had  been  barred  by  the 
statute,  the  plaintiff,  his  son,  and  his  son's  wife  had  an  interview,  at  which  the 
interest  due  to  the  plaintiff  was  calculated,  and  the  plaintiff's  son  then  put  his 
hand  into  his  pocket,  as  if  to  get  out  the  money  to  pay  it  and  the  plaintiff 
Stopped  him,  and,  writing  a  receipt  for  the  money,  gave  it  to  his  son's  wife, 
Baying  he  would  make  a  present  of  it  to  her,  it  was  held,  by  a  majority  of  the 
Court  of  Exchequer,  that  the  transaction  was  sufficient  to  take  the  case  out  of 
the  statute.  Bramwall,  B.,  dissented  on  the  ground  that  in  his  judgment  the 
facts  would  not  have  supported  a  plea  of  payment.  Maber  v.  Maber,  L.  R.  2 
Exch.  153. 

4  Ibid.;   Bodger  v.  Arch,  10  Exch.  333;   Amos  v.  Smith,  1  H.  &  C.  238. 

6  Maber  v.  Maber,  L.  R.  2  Exch.  153. 


§   114,   II5-]    ACKNOWLEDGMENT   BY    PART    PAYMENT.  277 

money  is  paid  by  a  debtor  on  behalf  of  his  creditor  to  a  third 
person,  that  may  be  a  sufficient  part  payment  as  between  the 
debtor  and  creditor.1 

Sec.  114.  Part  Payment  by  Bill  or  Note.  —  Where  a  debtor 
gives  a  bill  or  note  on  account  of  a  debt,  it  operates  as  a  part 
payment,  even  though  it  ultimaely  proves  worthless.  It  may 
be  said  that  payment,  in  the  popular  use  of  the  term,  is  taken 
to  include  a  giving  and  taking  of  a  negotiable  instrument  on 
account  of  a  delt,  as  well  as  a  giving  and  taking  it  in  satisfaction 
of  a  debt.  A  bill  is  conditional  payment,  and  its  immediate 
operation  .as  an  acknowledgment  of  a  balance  demand  is  not  to 
be  affected  by  its  operation  as  a  payment,  being  liable  to  be 
defeated  at  a  future  time;  and  even  if  it  is  worthless,  the  inten- 
tion and  the  act  by  which  it  is  evinced  remain  the  same,2  and  it 
operates  as  such  an  acknowledgment  of  the  debt  as  removes  the 
statute  bar. 

A  question  arises,  when  a  bill  or  note  is  given  in  part  payment 
of  a  debt,  whether  the  part  payment  must  be  considered  made 
at  the  time  of  the  delivery  of  the  bill,  or  of  payment  thereof. 
On  this  point  it  has  been  decided  that  when  a  debtor  draws  a  bill 
of  exchange  to  be  applied  in  part  payment  of  a  debt,  and  the 
bill  is  paid  when  due  by  the  drawee  to  the  creditor,  it  operates 
as  a  part  payment  from  the  time  of  the  delivery  of  the  bill  by 
the  debtor,  not  from  the  time  of  the  payment.3 

SEC.  115.  Indorsements  on  Notes,  etc.  —  Indorsements  by  a 
creditor  on  a  bill  or  note  admitting  payments  of  interest  or  prin- 
cipal, if  made  before  the  debt  was  barred,  were  formerly,  after 
the  creditor's  death,  held  to  amount  to  sufficient  evidence  for 
the  purpose  of  avoiding  the  plea  of  the  statute;  the  principle  of 
their  admission  as  evidence  being  that  they  were  acknowledg- 
ments against  the   interest   of   the   person   making  them.4     But 

1  Worthington  r.  Grimsditch,  7  O.  B.  479. 
'Turney  v.  Dodwell,  3  El.  &  Bl.  136. 

3  In  Irving  v.  Veitch,  3  M.  &  W.  go,  it  was  held  that  where  a  debtor  draws  a 
bill  of  exchange,  to  be  applied  in  part  payment  of  the  debt,  and  the  bill  is  paid 
when  due  by  the  drawee  to  the  creditor,  it  operates  as  part  payment,  to  defeat 
the  statute  of  limitations,  only  from  the  time  of  the  delivery  of  the  bill  by  the 
debtor,  not  from  the  time  of  its  payment.  Gowan  v.  Forster,  3  B.  &  Aid.  507; 
Smith  v.  Ryan,  39  N.  Y.  Sup'r  Ct.  489. 

4  Higham  v.  Ridgwav,  10  East,  109;  and  in  England,  under  Stat.  9  Geo.  IV. 
c.  14,  it   is   held  that  the  provision  that  "  no  indorsement  or  memorandum  cf 


2/8  STATUTES   OF   LIMITATION.  [CHAP.   IX. 

indorsements  made  after  the  statute  has  run  upon  the  claim  afford 
no  evidence  whatever  that  the  payment  was  made,  because  it  is 
an  act  in  furtherance  of  the  interests  of  the  creditor,  and  a  per- 
son will  not  be  permitted  to  make  evidence  for  himself.1     There- 

any  payment  written  or  made  after  the  time  appointed  for  this  act  to  take  effect 
upon  any  promissory  note,  bill  of  exchange,  or  other  writing,  by  or  on  behalf 
of  the  party  to  whom  such  payment  shall  be  made,  shall  be  deemed  sufficient 
proof  of  such  payment  so  as  to  take  the  case  out  of  the  operation  of  either  of  the 
said  statutes,"  only  applies  to  the  case  where  there  is  nolhing  more  than  an 
indorsement  or  memorandum  on  the  note  or  bill  or  other  writing  which  consti- 
tutes the  contract  declared  on.  Bradley  v.  James,  13  C.  B.  822.  It  appears 
from  the  same  case  that  the  memoranda  made  against  their  own  interest  of 
dead  persons  in  ledgers,  account-books,  and  otherwise,  may  si  ill  be  used  as 
evidence  for  the  purpose  of  removing  the  statute  bar.  Addams  v.  Seitzinger, 
1  W.  &  S.  (Penn.)  243;  Shaffer  v.  Shaffer,  41  Penn.  St.  51;  Coffin  v.  Bucknam,  12 
Me.  471 ;  Warren  v.  Granville,  2  Strange,  1129;  Bruce  v.  Robson,  15  East,  32; 
Higham  v.  Ridgway,  10  id.  iogr.  The  mere  fact  of  indorsements  of  payments 
within  six  years,  in  the  handwriting  of  the  payee,  is  not  competent  evidence  to 
prove  such  payments.  Davidson  v.  Delano,  11  Allen  (Mass.)  523.  where  the 
defendant,  in  order  to  obtain  an  advance  of  money,  gave  a  promissory  note  to 
H.,  a  customer  of  the  plaintiffs',  who  were  bankers,  and  H.  indorsed  the  note 
to  the  plaintiffs  on  obtaining  the  money,  with  which  he  was  debited  by  them, 
and  the  defendant  was  debited  by  H.  with  the  amount,  and  H.  had  paid  inter- 
est on  the  note  to  the  plaintiffs  within  six  years,  it  was  held  that  these  payments 
did  not  take  the  note  out  of  the  statute  as  against  the  defendant,  H.  not  being 
his  agent  for  that  purpose.  Harding  v.  Edgecumbe,  28  L.  J.  Exch.  313.  The 
bar  of  the  statute  of  limitations  is  not  repelled  by  the  transmission  of  a  draft 
by  the  debtor  and  its  re:eipt  by  the  creditor  within  the  three  years,  the  former 
not.  making  any  allusion  to  or  recogition  of  the  account  of  any  debt  whatever. 
Kussey  v.  Burgwyn,  6  Jones  (N.  C.)  L.  385.  A  credit  indorsed  upon  a  bond  at 
a  time  not  suspicious,  by  an  officer  of  the  bank,  in  the  regular  discharge  of  his 
duty,  is  sufficient  evidence  of  the  payment  to  interrupt  prescription.  Union 
Bank  v.  Foster,  14  La.  Ann.  159.  Indorsements  of  credits  on  a  note,  made  by 
a  promisee  before  the  statute  has  closed  upon  the  right  to  maintain  suit,  are 
evidence  of  corresponding  payments,  to  remove  the  bar  of  the  statute,  in 
Pennsylvania,  though  no  longer  in  England;  but  they  are  not  evidence  at  all 
unless  proved  to  have  been  made  while  the  statute  was  running.  To  toll  the 
statute  by  evidence  of  a  payment,  it  must  be  proved  unequivocally  that  the  pay- 
ment was  made  on  the  claim  in  suit;  and  where  that  is  not  done,  the  jury  is  not 
at  liberty  to  find  the  payment  sufficient.  The  indorsement  of  payment  in  the 
handwriting  of  the  plaintiff  or  promisee  alone  is  not  proper  to  go  to  the  jury. 
Shaffer  v.  Shaffer,  41  Penn.  St.  51. 

1  Briggs  7'.  Wilson.  17  Beav.  330;  Searle  v.  Barrington,  8  Mod.  278;  Gleadow 
v.  Atkin,  Car.  &  M.  410:  Sorrell  v.  Craig,  15  Ala.  789;  Glynn  v.  Bank,  2  Ves. 
38;  Roseboom  v.  Billington,  17  Johns.  (N.  Y.)  182;  Bailey  v.  Crane,  21  Pick 
(Mass.)  323;  Butcher  v.  Hixton,  4  I.eigh  (Va.)  519;  Read  v.  Hurst,  7  Wend. 
(N.  V.i  408;  Clapp  v.  Ingersoll,  11  Me.  83;  Wilcox  v.  Pearman,  q  Leigh  (Va.) 
144;   Brown  v.  Hutchings,  11  Ark.  83;  Gibson  v.  Peebles,  2  McCord  (S.  C.)  418; 


§  115.]  ACKNOWLEDGMENT   BY   PART   PAYMENT.  279 

fore,  an  indorsement,  in  order  to  remove  the  statute  bar,  must 
be  shown  by  affirmative  evidence  to  have  been  made  before  the 
statute  bar  had  attached  to  the  debt,  or  that  a  payment  was 
made  upon  the  claim  after  the  debt  was  barred  which  the  indorse- 
ment covers;  and  the  ordinary  presumption  that  a  writing  was 
executed  at  the  time  it  bears  date  does  not  attach.1  Parol  evi- 
dence is  admissible  to  prove  the  fact  of  payment,  or  to  defeat  it, 
although  evidenced  by  a  writing;2  but  in  order  to  be  effective 
to  remove  the  bar  of  the  statute,  it  must  be  shown  to  have  been 
a  payment  in  reference  to  the  demand  in  suit.3  Where  a  pay- 
ment is  made  upon  a  note,  and  indorsed  thereon  by  the  holder, 
at  the  request  of  the  payor,  proof  of  such  fact  is  sufficient  to 
remove  the  statute  bar.4  But  unless  a  payment,  as  such,  is 
actually  made  upon  the  note  or  claim  in  suit,  or  an  indorsement 
is  made  with  the  debtor's  assent,  it  cannot  have  the  effect  either 
to  keep  the  debt  on  foot  or  revive  it.  Thus,  where  the  debtor 
rendered  services  for  the  creditor,  and  the  latter,  without  the 
debtor's  assent,  indorsed  it  upon  a  note  he  held  against  him,  it 
was  held  not  such  a  payment  as  would  operate  as  a  revival  of  the 
note.5  The  usual  medium  of  proof  of  a  pnrt  payment  of  a  note 
•or  other  written  obligation  is  by  an  indorsement  thereon.6     But 

M'Ghee  v.  Greer,  7  Port.  (Ala.)  537;  Whilney  v.  Bigelow,  4  Pick.  (Mass.)  no; 
MeMasters  v.  Mather,  4  La.  Ann.  418;  Concklin  v.  Pearson,  1  Rich.  (S.  C.) 
391;  Connelly  v.  Pierson,  9  III.  108.  It  has  been  held  in  California  that,  in  the 
absence  of  any  written  acknowledgment  or  promise  signed  by  ihe  party  to  be 
charged,  part  payment  does  not  take  a  debt,  especially  a  specialty  debt,  out  of 
the  statute  of  that  State.  Pena  v.  Vance,  21  Cal.  142.  In  Michigan,  it  is  held 
that  unexplained  indorsements  of  payments  on  a  bond  have  no  weight  as  evi- 
dence of  payment,  for  the  purpose  of  charging  the  deblor,  by  treating  them  as 
an  acknowledgment,  so  as  to  take  the  case  out  of  the  statute.  Michigan  Ins. 
Co.  v.  Brown,  n  Mich.  265.  When  an  indorsement  on  a  bond  or  note  made  by 
the  obligee  or  promisee  is  relied  on  to  take  it  out  of  the  statute  of  limitations, 
the  law  determines  whether  such  indorsement  was  or  was  not  favorable  to  the 
party  making  it,  at  the  time  when  it  was  made,  and  on  this  question  depends 
its  admissibility  in  evidence.     Wilson  v.  Pope,  37  Barb.  (N.  Y.)  321. 

1  Shaffer  v.  Shaffer,  supra;  Guillou  v.  Perry  (Penn.),  1   W.  N.  C.  39;   Rowe  v. 
Atwater,  id.  149;   Kinsloe  v.  Baugh,  id.  147. 

2  Wolf  v.  Foster,  13  Kan.  116. 

3  Read   v.    Hurst,    7   Wend.   (N.   Y.)  408;   Howe  v.   Thompson,    n  Me.   152; 
Haven  v.  Hathaway,  20  id.  345;  Addams  v.  Seitzinger,  1  W.  &  S.  (Penn.)  243* 

4  Hawley  v.  Griswold,  42  Barb.  (N.  Y.)  18;  Sibley  v.  Phelps,  6  Cush.  (Mass.) 
172;  Smith  v.  Sims,  9  Ga.  418. 

6  Phillips  v.  Mahan,  52  Mo.  197;   Kyger  v.  Ryley,  2  Neb.  20. 

6  Alsion  v.  State  Bank,  9  Ark.  457;  Chandler  v.  Lawrence,  3  Mich.  261;  Con- 


280  STATUTES   OF    LIMITATION.  [CHAP.    IX. 

the  bona  fides  of  the  indorsement  must  be  proved  when  made  by 
the  creditor,  and  relied  upon  by  him  to  remove  the  statute  bar.1 
While  the  indorsement  of  a  payment  made  after  the  note  is 
barred  does  not  furnish  evidence  sufficient  to  establish  the  fact  of 
payment,  yet  the  party  seeking  its  benefit  is  not  deprived  thereof, 
if  he  can  establish  such  fact  by  other  competent  evidence,  as  it 
is  well  settled  that,  except  where  the  statute  otherwise  expressly 
provides,  the  fact  of  part  payment  may  be  established  by  parol, 
and  that,  too,  even  though  it  is  evidenced  by  a  writing,  which 
is   not   produced.2     But,    as   previously   stated,    an    indorsement 

nelly  v.  Pierson,  9  111.  108;  Turner  v.  Crisp,  2  Strange,  287;  Sigourney  v.  Drury, 
14  Pick.  (Mass.)  387;  Gale  v.  Capron,  1  Ad.  &  El.  102;   Hathaway  v.  Haskell,  9 
Pick.  (Mass.)  42;   Ilsley  v.  Jewett,  2  Met.  )Mass.)  168;   Dovvling  v.  Ford,  1  M.  & 
W.  325;  Howe  v.  Thompson,  11  Me.  152;  Hunt  v.  Brigham,  2  Pick.  (Mass.)  581. 
1  Briggs  v.  Wilson,  39  Eng.  L.  &  Eq.  62;   Beatty  v.   Clement,  12  La.  Ann.  18; 
Beltzhoover  v.  Yewell,  11  G.  &  J.  (Md.)  212;  Vaughan   v.  Hankinson,  35   N.  J. 
L.  79;  Waters  v.  Tomkins,  2  C.  M.  &   R.  723.     See   Rose  v.  Bryant,  2  Camp. 
321,  where  an  action  of  debt  on  a  bond  dated  in   1785  was  brought,  and  there 
were  several  indorsements  thereon,  acknowledging  the  receipt  of  interest  down 
to  1793,  which   were  proved  to  be  in  the  handwriting  of   the  defendant.     These 
were  allowed  to  be  good  evidence  of  the  bond  remaining  unsatisfied  at  the  date 
of   the   last   indorsement.     The    presumption    from    lapse    of    time    being  thus 
repelled,  the   plaintiff,   for   the   purpose  of   meeting  certain   direct  evidence  of 
payment,  in  1794,  proposed  to  read  other  indorsements  down  to  1795,  acknowl- 
edging  the   receipt  of    interest  and    part   of    the    principal.      But    these    latter 
1ndorsements  were  not  in  the  handwriting  of  the  defendant.     An  objection  being 
taken  to  their  being  read.  Lord  Ellenborough  thought  that  they  must  be  shown 
to  have  been  on  the  bond  at,  or  recently  after,  the  times  when   they  bore  date. 
Although  it  may  seem,  he  said,  at  first  sight  against  the  interest  of  the  obligee 
to  admit  part  payment,  he  may  thereby,  in  many  cases,  set  up  the  bond  for  the 
residue  of  the  sum  secured.     If  such  indorsements,   he  continued,  were  receiva- 
ble whensoever  they  may  have  been  written,  this  would  be  allowing  the  obligee 
to  manufacture  evidence  for  himself  to  contradict  the  fact  of  payment.     And  he 
had  been  at  a  loss  to  see  the  principle  on  which  these  receipts,  in  the  handwrit- 
ing of   the   creditor,    have   sometimes   been   admitted   as   evidence  against   the 
debtor;  and  he  was  of  opinion  that  they  could  not  properly  be  admitted,  unless 
they  were  proved  to  have  been   written  at  a  time  when  the  effect  of  them  was 
clearlv  in  contradiction  to  the  writer's  interest.     It  has  ever  since  been  held 
that  it  cannot  be  taken  for  granted,  in  all  cases,  because  a  person  admits  that 
any  portion  of  an  amount  due  him   has  been   paid,  that  it  in  reality  has  been; 
and   that   the  mere  indorsement  of  a  payment  upon  a  promissory  note  by  the 
holder,  after  the  expiration  of  the  time  limited  by  the  statute,  affords  no  legal 
evi  lence  that  such  payment  was  in  fact  made. 

5  Wolf  v.  Foster,  supr.i.  In  Eastwood  v.  Saville,  9  M.  &  W.  615,  in  an  action 
on  a  promissory  note,  made  by  the  defendant,  it  was  held  that  an  indorsed 
receipt  of  money  was  not  evidence  of  a  part  payment  sufficient  to  take  the  case 
out  of  the  statute. 


§  1 1 5-]  ACKNOWLEDGMENT   BY    PART   PAYMENT.  28l 

made  a  sufficient  time  before  the  statute  has  run  to  repel  any 
idea  that  it  was  made  solely  with  a  view  to  prolong  the  life  of  the 
note,  being  against  the  interest  of  the  payee,  will  keep  the  note 
on  foot.1  The  effect  of  an  indorsement  may  be  repelled  as  proof 
that  no  payment  was  in  fact  made,  or  that  it  was  made  without 
the  payee's  assent.  Thus,  if  the  holder  of  a  promissory  note 
receives  goods  from  the  promisor,  which  at  his  request  are  sold* 
and  the  proceeds  indorsed  on  the  note  within  a  reasonable  time, 
it  will  be  considered,  in  reference  to  the  statute  of  limitations,  as 
a  payment  by  the  maker's  order.  But  if  the  holder  makes  such 
sale  and  indorsement  after  a  reasonable  time  has  elapsed,  without 
the  assent  of  or  notice  to  the  maker,  this  will  not  take  the  note 
out  of  the  statute.2  The  fact  that  the  rule  in  relation  to  indorse- 
ments made  before  the  statute  has  run  upon  a  note  or  other  obli- 
gation is  prima  facie  evidence  of  a  payment,  being  predicated 
upon  the  circumstance  that  it  is  against  the  interest  of  the  payee, 
it  follows  that  the  force  of  this  presumption  depends  upon  the 
time  when  it  was  made  in  reference  to  the  time  when  the  statu- 
tory bar  would  attach.  If  an  indorsement  was  made  a  year  after 
the  note  was  given,  or  even  a  year  before  the  statutory  bar 
attached,  it  would  afford  much  stronger  inherent  evidence  that  a 
payment  was  in  fact  made  upon  the  note,  than  one  indorsed  only 
a  few  days  before  the  statute  would  run  upon  it.  And  an 
indorsement  made  after  the  statutory  bar  has  become  complete, 
being  in  the  interest  of  the  creditor,  of  course  affords  no  evi- 
dence whatever  of  the  fact  of  payment."  And,  in  order  to  make 
such  indorsements  even prhna  facie  evidences  of  payment,  under 
any  circumstances,  the  plaintiff  ought  to  be  required  to  show 
that  they  were  made  at  the  time  they  bear  date.4  An  indorse- 
ment by  the  plaintiff,  without  the  knowledge  of  the  defendant, 

1  Thus,  in  an  action  by  an  administrator  on  a  promissory  note  commenced 
more  than  six  years  after  the  date  of  the  note,  an  indorsement  in  the  handwrit- 
ing of  the  intestate  of  a  payment  purporting  to  have  been  made  more  than  two 
years  before  the  statute  of  limitations  would  attach,  and  six  months  prior  to 
his  death,  it  was  held  the  jury  might  regard  it  as  evidence  of  a  new  promise, 
though  there  was  no  proof  other  than  as  above  of  the  time  when  said  idorse- 
ment  was  actually  made.     Coffin  v.  Bucknam,  12  Me.  471. 

2  Porter  v.  Blood,  5  Pick.  (Mass.)  54. 

3  See  Rose  v.  Bryant,  supra. 

4  Ibid.;  Clapp  v.  Ingersoll,  n  Me.  83;  Watson  v.  Dale,  1  Port.  (Ala.)  247. 
The  bona  fides  of  the  indorsement  must  be  shown.  Chambers  v.  Walker,  4 
Rich.  (S.  C.)  548. 


282  STATUTES   OF   LIMITATION.  [CHAP.   IX. 

does  not  operate  to  take  the  note  out  of  the  statute,  unless  it  is 
accompanied  by  proof  that  the  payment  was  in  fact  made  to 
apply  on  the  note.1  In  Mississippi  it  is  held  that  a  part  payment 
is  not  sufficient  to  take  the  debt  out  of  the  operation  of  the  stat- 
ute, unless  it  is  accompanied  by  an  express  admission  made  at 
the  time,  not  only  that  the  debt  is  due  and  unpaid,  but  that  the 
payment  is  of  only  part  of  the  debt;2  and  from  the  mere  fact  of 
part  payment  the  jury  are  not  warranted  in  finding  a  promise  to 
pay  the  balance.3  Where  a  demand  is  payable  by  instalments, 
and  all  are  due,  a  general  payment  will  take  the  entire  demand 
out  of  the  statute.4  If  an  account  is  presented  to  a  debtor,  and 
he  examines  and  makes  no  objection  to  any  items  of  it,  a  gen- 
eral payment  on  account,  without  specifying  any  particular  appli- 
cation, saves  the  whole  account  from  the  statute.5 

Sec.  i  i 6.  Evidence  of  Part  Payment.  —  The  burden  of  estab- 
lishing the  fact  of  a  part  payment,  and  all  the  elements  requisite 
to  give  it  effect  as  such  in  the  removal  of  the  statute  bar,  is  upon 
the  plaintiff;6  and,  in  those  States  where  an  acknowledgment  or 
new  promise  must  be  in  writing,  cannot  be  proved  by  an  indorse- 
ment upon  the  note  or  other  obligation  made  by  the  payee."  But 
an  indorsement  of  a  part  payment  upon  a  note  or  other  obliga- 
tion made  by  the  debtor  himself  is  sufficient  evidence  of  a  new 
promise  to  remove  the  statute  bar,  unless  the  statute  requires  that 

1  Whitney  v.  Bigelow,  4  Pick.  (Mass  )  no. 

2  Foote  v.  Bacon.  24  Miss.  156;  Anderson  v.  Robertson,  id.  389;  McCullough 
v.  Henderson,  id.  92;   Davidson  v.  Harrison,  33  Miss.  41. 

3Smiih  v.  Westmoreland,  12  S.  &  M.  (Miss.)  663. 

4  Nesom  v.  D'Armond,  13  La.  Ann.  294. 

5  Peck  v.  New  York  Steamship  Co.,  5  Bosw.  (N.  Y.)  226;  Dyer  v.  Walker,  54 
Me.  18. 

6  Riggs  v.  Roberts,  85  N.  C.  151. 

1  McMasters  v.  Malher,  4  La.  Ann.  419;  Connelly  v.  Pierson,  9  111.  108;  Taylor 
v.  McDonald,  2  Mill  (S.  C.)  Const.  178;  Whitney  v.  Bigelow,  4  Pick.  (Mass.)  Jio; 
Concklin  v.  Pearson,  1  Rich.  (S.  C.)  391;  Knight  v.  Clements,  45  Ala.  89,  6  Am. 
Rep.  693.  Where  a  party  relies  on  an  indorsed  payment  on  a  note  to  stop  the 
operation  of  the  statute  of  limitations,  "  such  payment  must  be  proved  to  have 
been  made  at  the  time  it  bears  date."  Watson  7;.  Dale,  1  Port.  (Ala.)  247.  See 
McGehee  v.  Greer,  7  Port.  537.  So,  too,  an  admission  made  by  a  principal 
maker  of  a  note,  coupled  with  a  promise  to  pay,  will  not  revive  the  debt  so  as 
to  takt:  it  out  of  the  bar  of  the  statute  of  limitations,  as  against  a  comaker, 
who  is  a  surety;  nor  will  payments  made  by  him  have  the  effect  to  prevent  the 
running  of  the  statute.  Lowther  v.  Chappell,  3  Ala.  353.  See  Myatts  v.  Bell, 
41  id.  222;   Edgar  v.  The  State,  43  Ala.  312. 


*§   Il6.]  ACKNOWLEDGMENT    BY    PART   PAYMENT.  283 

a  new  promise,  etc.,  shall  be  signed  by  the  debtor;  !  and  it  has 
been  held  that  an  indorsement  of  a  payment  made  by  an  officer 
of  a  bank  upon  a  note  or  bond  due  to  the  bank,  in  the  regular 
course  of  his  duties,  is  sufficient  evidence  of  the  payment; 2  and 
in  Massachusetts  it  has  been  held  that  an  indorsement  made  by 
the  holder  of  the  note,  with  the  express  assent  of  the  maker,  is 
sufficient.3  But  while,  where  the  statute  does  not  require  an 
acknowledgment  or  new  promise  to  be  in  writing,  and  signed  by 
the  debtor,  an  indorsement  made  by  the  holder  of  a  note  of  a 
payment  is  prima  facie  evidence  of  the  fact,4  yet,  where  the  stat- 
ute imposes  this  condition,  such  an  indorsement  of  itself  affords 
no  evidence  whatever  of  the  fact  of  payment.5  But  the  plaintiff 
is  not  deprived  of  the  benefit  of  the  payment  to  repey  the  stat- 
ute, if  he  can  prove  the  fact  by  other  and  conclusive  evidence. 
The  only  consequence  of  a  failure  to  have  the  debtor  himself 
make  the  indorsement  is  to  deprive  the  plaintiff  of  a  ready  and 
satisfactory  means  of  proof,  and  to  leave  him  to  establish  the 
payment  by  other  proof,  if  he  can.  An  indorsement  under  the 
old  rule  predicated  upon  the  former  statutes  never  afforded  more 
than  prima  facie  evidence  of  the  fact  of  payment,  and  might  be 
disproved. 

1  Tappan  v.  Kimball,  30  N.  H.  136;  Sage  v.  Ensign,  2  Allen  (Mass.)  245. 

2  Union  Bank  v.  Foster,  14  La.  Ann.  159. 

3  Sibley  v.  Phelps,  6  Cush.  (Mass.)  172. 

4  Addams  v.  Seitzinger,  1  VV.  &  S.  (Penn.)  243;  Howe  v.  Saunders,  38  Me.  350. 
In  Maskell  v.  Pooley,  12  La.  Ann.  66r,  it  was  held  that,  in  order  to  make  such 
a  payment  effectual,  it  must  be  shown  where  and  by  whom  the  payment  was 
made.     See  also  Gordon  v.  Schmidt,  20  id.  427. 

'Connelly  v.  Pierson,  supra;  McMasters  v.  Mather,  supra. 


284  STATUTES   OF    LIMITATION.  [CHAP.   X. 


CHAPTER  X. 

When  Statute  begins  to  run.     Contracts. 

Sec.  117.   Must  be  Party  to  sue  or  be     Sec.  120.   Contracts  for  Services. 

sued.  121.    Rule  as  to  Services  of  Attor- 

118.  When  Demand  is  necessary  neys. 

to  start   the   Operation   of  122.    When   Attorney    is    charged 

the  Statute.  with   Misfeasance  or  Mal- 

119.  General    Rules    as    to    when  feasance. 

there  is  a  Condition    Pre- 
cedent. 

Sec.  1 17.  Must  be  Party  to  sue  or  be  sued.  —  By  the  express 
terms  of  all  the  statutes,  the  statute  of  limitations  only  begins 
to  run  from  the  time  when  the  right  of  action  accrues; 1  but  an 

'Sims  v.  Gay,  109  Ind.  501;  Ewell  v.  Chicago,  etc.,  R.  R.  Co.,  29  Fed.  Rep. 
57;  Sohn  v.  Waterson,  17  Wall.  (U.  S.)  596;  Dyer  v.  Wittier,  89  Mo.  81 ;  Wright 
v.  Tichenor,  104  Ind.  185-  Wright  v.  Kleyla,  id.  223;  Amole's  Appeal,  115  Penn. 
St.  356;  Culler  v.  Motzer,  13  S.  &  R.  (Penn.)  356;  Walker  v.  Hill,  in  Ind.  223. 
If  either  of  the  parties  is  under  a  disability,  or  under  two  disabilities,  or  if  a 
disability  supervenes  an  existing  one,  the  statute  does  not  begin  to  run  until 
the  last  disability  is  removed.  Campbell  v.  Crater,  93  N.  C.  156.  The  statute 
does  not  begin  to  run  against  an  estate  in  dower  until  it  has  been  assigned, 
Holmes  v.  Kring,  98  Mo.  452;  Johns  v.  Fenton,  8S  Mo.  64,  or  until  she  has  con- 
veyed it,  Smith  v.  Shaw,  150  Mass.  297;  nor  against  devisees  and  legatees  until 
a  substantial  right  of  action  accrues.  Garesche  v.  Lewis,  93  Mo.  197.  Nor  in 
the  case  of  lands  until  there  is  an  actual  adverse  possession.  It  does  not  begin 
to  run  against  a  remainderman  until  the  determination  of  the  prior  estate. 
Fleming  v.  Burnham,  100  N.  Y.  1.  Where  there  is  a  tenancy  by  curtesy  a  right 
of  action  does  not  accrue  to  their  heir  until  the  tenant's  death,  Smith  v.  Paterson, 
because  until  the  happening  of  that  event  no  right  of  entry  on  the  part  of  the 
heir  exists.  Wright  7'.  Tichenor,  supra;  Orlhwein  v.  Thomas,  127  111.  554; 
Walsh  v.  Chicago,  etc.,  R.  Co.,  19  Mo.  App.  127.  In  the  case  of  mutual 
accounts  it  runs  from  the  date  of  the  last  charge  or  entry.  Abbay  v.  Hill,  64 
Miss.  340.  In  those  States  where  the  statute  does  not  begin  to  run  where  the 
cause  of  action  is  fraudulently  concealed,  the  statute  does  not  begin  to  run 
against  a  claim  for  a  return  of  a  part  of  the  purchase  money  for  land,  where  it 
was  bought  by  the  acre  and  more  was  paid  for  than  was  in  fact  conveyed  until 
the  discovery  of  the  mistake.  Biggs  v.  Lexington,  etc.,  R,  Co.,  79  Ky.  470. 
Where  a  deed  is  sought  to  be  impeached  because  it  was  made  in  fraud  of  his 
creditors,  the  statute  begins  to  run  from  the  time  the  fraudulent  deed  was 
recorded,  or  from  the  lime  the  creditor  had  actual  notice  of  the  conveyance, 
which  ever  occurred  first.  Hughes  v.  Litrell,  75  Mo.  573.  Where  a  person 
who  is  occupying  premises  as  a  tenant,  whether  rent  free  or  otherwise,  buys  it 


§  I  I/.]  WHEN    STATUTE    BEGINS   TO    RUN.  285 

important  rule  to  be  borne  in  mind  deternv.ning  when  the  statute 
attaches  to  a  claim  is,  that  at  the  time  when  a  right  of  action 
accrues  there  must  be  in  existence  a  party  to  sue  and  be  sued,  or 
the  statute   does  not   attach   thereto.1     Consequently  it  follows 

in  at  a  tax  sale,  without  the  owner's  knowledge,  the  statute  only  begins  to  run 
from  the  time  of  the  discovery  of  the  fraud.  Duffitt  v.  Tuhan,  2S  Kan.  292  If 
property  sold  where  nothing  is  said  as  to  time  when  it  is  to  be  paid  for,  it  is 
presumed  that  it  is  to  be  paid  for  on  delivery,  and  the  statute  begins  to  run  from 
the  time  of  delivery.  Rous  v.  Walden,  82  Ind.  238.  For  a  deposit  of  money 
with  a  bank  or  banker  the  statute  begins  to  run  from  the  time  when  it  was  taken. 
Brown  v.  Pike,  34  La.  Ann.  576;  British  N.  Am.  Bank  v.  Merchants'  Bank,  101 
N.  Y.  96;  In  re  Waldron,  28  Hun,  421.  In  actions  against  estates  the  statute 
begins  to  run'from  the  appointment  of  the  executor  or  administrator.  Under- 
bill v.  Mobile  Ex.  Is.  Co.,  67  Ala.  45.  Where  a  person  agrees  to  pay  for  services 
or  any  other  claim  or  provision  in  his  will  in  favor  of  the  creditor,  the  statute 
only  begins  to  run  from  the  time  of  the  person's  death,  because  until  that  lime 
there  is  no  breach  of  the  contract  and  no  right  of  action.  Eagan  v.  Kergill,  1 
Demarest  (N.  Y.)  464.  Against  an  indorser  of  a  note  payable  on  demand  the 
statute  begins  to  run  immediately,  without  demand.  McMullen  v.  Raffertv.  89 
N.  Y.  456.  Where  a  statute  gives  a  municipal  corporation  the  right  to  take  the 
waters  of  a  river,  and  provides  that  no  personal  damage  may  be  applied  for, 
the  assessment  of  his  damages  at  any  time  within  three  years  from  the  taking 
of  his  property,  or  the  construction  of  said  works,  and  that  no  application  shall 
be  made  until  the  water  is  actually  diverted  by  the  town,  the  statute  begins  to 
run  from  the  time  when  water  is  first  withdrawn  therefrom  by  the  direction  of 
the  engineer,  although  it  is  merely  for  the  purpose  of  testing  the  engine. 
Tileston  v.  Brookline,  134  Mass.  438;  Goff  v.  Pawtucket,  13  R.  I.  471.  Where 
a  person  agrees  to  pay  a  debt  when  able,  the  statute  does  not  begin  to  run  until 
the  promisor's  ability  to  pay  first  existed.  Tebo  v.  Robinson,  100  N.  Y.  27. 
The  statute  begins  to  run  in  favor  of  the  sureties  of  an  executor's  bonds  from 
the  lime  of  the  judicial  ascertainment  of  the  principal's  liability;  Bonner  v. 
Young,  68  Ala.  35;  and  in  favor  of  sureties  on  the  bond  of  a  guardian  from  the 
settlement  of  his  account  as  guardian.  Adams  v.  Jones,  68  Ala.  117.  Upon  a 
due  bill  payable  on  demand,  the  statute  begins  to  run  from  its  date,  not  from 
the  time  of  demand.  Andress's  Appeal,  99  Penn.  St.  421.  The  statute  begins 
to  run  upon  a  note  payable  upon  demand  from  the  day  of  the  delivery  of  the 
note,  and  not  necessarily  from  the  date  of  the  note,  because  until  delivery  it 
does  not  become  operative  or  give  the  payee  a  right  of  action.  Collins  v.  Dris- 
coll,  69  Cal.  550.  The  statute  begins  to  run  in  favor  of  a  principal  against  an 
agent  for  negligence  in  the  performance  of  his  duties  from  the  time  the  princi- 
pal becomes  aware  of  the  fact  upon  which  his  right  of  action  depends.  Ring 
v.  Mackellar,  109  N.  Y.  215.  Bat  this  rule  only  applies  in  those  States  where 
the  statute  is  suspended  by  concealment  of  the  fraud,  or  where  it  is  held  that  a 
demand  must  first  be  made.  Actions  for  breach  of  covenants  of  warranty  do 
not  accrue  until  the  covenantee  has  made  payments  to  protect  his  rights. 
Taylor  v.  Priest,  21  Mo.  App    685;   Priest  v.  Deaver,  21  id.  209. 

1  Murray  v.    East   India   Co.,  5   B.  &  Aid.  204;  Daniel    v.   Day,   51  Ala.  481; 
Granger   v.   Granger,  6   Ohio,  35;   Meeks  v.  Vassaull,  3  Sawyer,   206;  Clark  v. 


286  STATUTES   OF   LIMITATION.  [CHAP.   X. 

that  if  at  the  time  a  right  of  action  accrues  either  the  person 
entitled  to  enforce  it,  or  against  whom  it  exists,  is  dead,  and  no 
executor  or  administrator  of  his  estate  has  been  appointed,  the 
statute  does  not  attach  to  the  claim  or  begin  to  run  thereon  until 
such  appointment  is  made  and  the  person  appointed  has  qualified; 
but  as  soon  as  a  legal  representative  is  appointed,  the  statute 
attaches  to  the  claim  and  begins  to  run  thereon.1  And  the  fact 
that  an  executor  or  administrator  has  been  appointed  in  another 
State  has  no  effect ;  the  statute  does  not  begin  to  run  until  there  is  a 
legal  representative  of  the  deceased  in  the  State  where  the  remedy- 
is  sought.  For  the  rule  when  the  statute  has  begun  to  run  before 
a  person's  death,  see  chapter  on   Executors  and  Administrators. 

SEC.  i  1 8.  When  Demand  is  necessary  to  start  the  Operation  of 
the  Statutes.  —  In  all  cases  where  a  demand  is  necessary  to  fix 
the  liability  of  a  party,  except  where,  as  is  the  case  in  several  of 
the  States,  provision  is  made  in  the  statute  that  when  a  demand 
is  necessary  before  an  action  can  be  brought  it  shall  be  deemed 
to  have  been  made  at  the  time  when  the  right  to  make  the 
demand  accrued,2  the  statute  of  limitations  is  not  put  in  motion 

Hardiman,  2  Leigh  (Va.)  347;  Bucklin  v.  Ford,  5  Barb.  (N.  Y.)  393;  Johnson  v. 
Wren,  3  Stew.  (Ala.)  172;  Wood  v.  Ford,  29  Miss.  57:  Sewall  v.  Valentine,  6 
Pick.  (Mass.)  270;  Sherman  v.  Western,  elc,  Co.,  24.  Iowa,  515;  Fulenweider 
v.  United  States,  9  Ct.  of  CI.  (U.  S.)  403;  Lewis  v.  Broadwell,  3  McLean  (U.  S. 
C.  C.)  568.  In  Grubb  v.  Clayton,  2  Hayw.  (U.  S  )  378,  it  was  held  that  the  statute 
cannot  operate  as  a  bar  against  a  deceased  person's  estate  if  there  is  no  admin- 
'strator  to  sue,  although  letters  of  administration  have  been  taken  out  in  a 
foreign  country.  In  Bucklin  v.  Ford,  5  Barb.  (N.  Y.)  393,  it  was  held  that 
where  one  received  property  belonging  to  the  estate  of  a  deceased  person,  before 
administration  was  granted  thereon,  the  statute  began  to  run  against  the  right 
to  secure  the  same  from  the  time  when  administration  was  granted,  and  not 
from  the  lime  when  the  property  was  received.  Davis  v.  Garr,  6  X.  Y.  124; 
Thurman  v.  Shelton,  10  Yerg.  (Tenn.)  3S3  When  the  statute  begins  to  run 
nothing  stops  its  operation,  except  the  statute  so  provides;  but  the  statute  does 
not  begin  to  run  until  there  is  one  in  being  competent  to  sue  or  be  sued.  Ruff 
v.  Bill.  7  II.  i.'v:  J.  (Md.)  14;  Crozier  v.  Gano,  1  Bibb  (Ky.)  257;  Faysoux  v. 
Priiher,  1  X.  &  M.  (S.  C.)  296:  Rogers  v.  Hillhouse,  3  Conn.  398;  Peck  v.  Ran- 
dall, 1  Johns.  (X.  Y.)  165;  Johnson  v.  Wren,  3  Stew.  (Ala.)  172;  Ewell  v.  Chi- 
cago, etc.,  R.  Co.,  29  Fed.  Rep.  57;  Glass  v.  Williams,  16  Lea  (Tenn.)  607. 

1  See  Ilobart  v.  Connecticut  Turnpike  Co.,  15  Conn.  145;  Lee  v.  Gause,  2  Ired. 
(\\  C.)  L.  440;  Grubb  t.  Clayton,  2  Hayw.  (N.  C.)  378.  Provision  is  made  in 
the  statutes  of  many  of  the  States  for  a  suspension  of  the  statute  upon  the 
death  of  a  creditor  or  debtor. 

'Such  a  provision  exists  in  the  statutes  of  Tennessee,  §  2780;  New  York,. 
;'    ;i>;   and   Alabama,  £3241. 


§   II8.J  WHEN    STATUTE   BEGINS   TO    RUN.  287 

until  such  demand  is  made,1  although  if  a  demand  is  not  made  in 
a  reasonable  time  a  court  of  equity  will  treat  the  claim  as  stale, 
and  refuse  to  aid  in  its  enforcement;2  and  courts  of  law  will  pre- 
sume that  such  demand  was  made  from  the  lapse  of  time, 
especially  where  the  situation  and  relation  of  the  parties  are  such 

1  Codman  v.  Rogers,  10  Pick.  (Mass.)  112;  Wolfe  v.  Whiteman,  4  Harr.  (Del.) 
246.  Upon  a  promise  to  deliver  goods  on  demand,  an  action  will  not  lie  until 
a  demand  is  made  therefor;  consequently  the  statute  begins  to  run  from  the 
date  of  the  demand,  and  not  from  the  date  of  the  contract,  and  a  plea  non 
assumpsit  infra  sex  annos  is  nol  a  proper  plea,  but  actio  non  accrevit  infra  sex 
annos.  Brewster  v.  Hobari,  15  Pick.  (Mass.)  302.  Where  a  demand  is  requisite 
before  a  specific  performance  can  be  sought,  the  statute  begins  to  run  from  the 
date  of  the  demand,  and  a  new  cause  of  action  cannot  be  created  by  a  new 
demand.  Bruce  v.  Tilson,  25  N.  Y.  194;  Taylor  v.  Rowland,  26  Tex.  293. 
A  certificate  of  deposit  issued  by  a  banker,  payable  "  on  demand,"  is  due  from 
its  date,  and  no  special  demand  is  necessary.  Brummagim  v.  Tallant,  29  Cal. 
503.  In  Shutts  v.  Fingar,  100  N.  Y.  539,  it  was  held  that  no  cause  of  action 
arises  against  an  indorser  of  a  promissory  note  payable  upon  demand,  with 
interest,  until  after  actual  demand  on  the  maker  and  until  such  demand  the 
statute  does  not  begin  to  run  as  agaist  the  indorser.  See  Trimble  v.  Thorne, 
16  Johns.  (N.  Y.)  152;   Wells  v.  Mann,  45  N.  Y.  327. 

2  In  Codman  v.  Rogers,  supra,  the  executor  of  one  of  two  copartners,  having 
made  a  partial  settlement  with  the  surviving  partner,  lay  by  for  seventeen 
years,  and  until  after  the  death  of  the  surviving  partner,  without  making  a 
demand  for  a  further  accounting,  and  in  the  meantime  many  of  the  partnership 
papers  had  been  destroyed  by  two  successive  fires,  and  no  cause  for  the  delay 
was  shown,  the  court  refused  to  sustain  a  bill  for  an  account.  Wilde,  J.,  in 
delivering  the  judgment  of  the  court,  said:  "Generally,  where  a  debt  is 
payable  in  money  and  on  demand,  the  statute  of  limitations  begins  to  run  imme- 
diately after  the  debt  is  contracted;  but  if  a  demand  previous  to  the  commence- 
ment of  the  action  is  necessary,  the  statute  will  not  begin  until  the  demand  is 
made.  But  in  the  latter  case  there  must  be  some  limitation  to  the  right  of 
making  a  demand.  A  party  must  not  be  permitted  to  sleep  over  his  rights,  to 
the  prejudice  of  the  party  on  whom  he  makes  a  claim,  and  who  by  the  delay 
may  be  deprived  of  the  evidence  and  means  of  effectually  defending  himself. 
A  demand  must  be  made  in  a  reasonable  time,  otherwise  the  claim  is  considered 
stale,  and  no  relief  will  be  granted  in  a  court  of  equity.  If  no  cause  for  d<day 
can  be  shown,  it  would  seem  reasonable  to  require  the  demand  to  be  made 
within  the  time  limited  by  the  statute  for  bringing  the  action."  See  also 
McDonnell  v.  Branch  Bank,  20  Ala.  312,  where  the  same  rule  was  applied  in  an 
action  against  a  clerk  of  the  court  for  money  collected  on  a  judgment,  and  it  was 
held  that  an  action  could  not  be  maintained  without  proof  of  a  demand,  or 
actual  conversion,  and  that  the  demand  must  be  made  within  a  reasonable 
time  after  the  collection  to  avoid  the  statute.  See  also  Wright  v.  Paine,  62  Ala. 
340,  34  Am.  Rep.  24.  Generally,  equity  will  refuse  relief  upon  a  stale  demand, 
although  technically  the  statute  has  not  run  upon  it,  unless  the  laches  are  prop- 
erly explained,  and  the  explanation  is  sufficient  to  excuse  the  delay.  Phillips 
v.  Rogers,  12  Met.  (Mass.)  405;  supra,  gg  58,  59 


288  STATUTES    OF    LIMITATION.  [CHAP.    X. 

as  to  render  it  improbable  that  it  should  be  neglected.1  But 
where  delay  in  making  the  demand  is  expressly  contemplated, 
even  though  the  obligation  is  in  terms  payable  on  demand,  there 
is  no  rule  of  law  that  requires  that  demand  should  be  made  within 
the  statutory  period   for  bringing  an  action.2  (a)     Where,  how- 

1  Staniford  :•.  Tuttle,  4  Vt.  S2;  Callard  v.  Tutlle,  id.  491;  Raymond  v.  Steven- 
son. 4  Biackf.  (Ind.)  77.     See  post,  section  Laches  and  Stale  Demands. 

-  An  obligation  for  the  payment  of  money  one  day  after  date  contained  a  con- 
dition that  if  the  payee  should  demand  payment  during  her  natural  life  it  should 
be  due  and  payable,  but  in  case  of  her  death  before  any  or  all  of  the  debt  should 
be  paid  it  should  not  be  paid  at  all.  it  was  held  )hat  a  demand  made  more  than 
ten  years  after  the  obligation  was  executed  was  in  season,  and  that  an  action 
brought  immediately  thereafter  was  not  barred  by  the  statute.  Jameson  v. 
Jameson,  72  Mo.  640,  where  a  note  payable  on  demand  is  barred  in  six  years,  a 
demand  made  within  six  years,  where  a  demand  is  necessary,  is  made  within 
a  reasonable  time,  and  the  statute  begins  to  run  from  the  time  when  demand 
was  made.     Thrall  v.  Mead,  40  Vt.  540.     See  Brown  v.  Rutherford,  14  Ch.  D.  687. 

La  Farge  v.  Jayne,  9  Penn.  St.  410.  In  Stanton  v.  Stanton,  37  Vt.  411,  where 
a  note  was  made  payable  "  in  produce  or  wood  from  the  farm  on  demand  as 
the  pavee  may  want  to  use  the  same,"  and  demand  was  delayed  for  twelve 
vears,  the  court  held  that  the  statute  did  not  run  upon  the  note  in  the  absence 
of  proof,  when,  as  a  matter  of  fact,  a  reasonable  time  for  making  the  demand 
expired,  or  of  facts  from  which  the  law  would  assume  a  limit  to  such  reason- 
able time.  In  Thorpe  v.  Booth,  Ry.  &  Moo.  388,  where  a  note  dated  March  12, 
1813,  was  made  payable  twenty-four  months  after  demand,  and  the  note  was 
presented  for  payment  on  the  28th  of  June,  1S23,  in  a  suit  thereon,  the  defend- 
ants having  set  up  the  statute  as  a  bar,  it  was  held  that  the  statute  had  not  run. 
See  also  Harrison  v.  Kerrison,  2  Taunt.  323;  Mills  v..  Davis,  113  N.  Y.  243. 

(a)  See   United   States  v.    Wardwell,  a  demand,  the  statute  will  not  begin  to 

172    U.S.  48,53;   Horton    v.    Seymour  run  until  the  demand  is  made.     Holmes 

(Minn.),  85    N.  VV.   551.     In   Campbell  v.   Kerrison,    2   Taunt.  323;  Thorpe  v. 

v.  Whoriskey,  170  Mass.  63,  65,  Knowl-  Booth,  R  &  M.  388;  Thorpe  v.  Coombe, 

ton.  J.,  said:     "  It  is  to  be  noticed  that  8  Dowl.  &  Ry.  347;  Stanton  v.  Stanton, 

the    bar   of    the  statute  of   limitations  37  Vt.  411;  Rhind  v.  Hyndman,  54  Md. 

differs   from    laches  in  suits  in  equity,  527;    Girard    Bank    v.    Bank    of    Penn 

inasmuch    as   il    does    not    depend    on  Township,  39  Penn.  St.  92.     See  Thrall 

equitable  considerations  in  the  particu-  v.    Mead,    40  Vt.   540.     (See  Tobin  v. 

lar  case,  but  upon  an  express  provision  McKinney  (S.  D.),  84  K.  W.  228;  infra, 

of  statute,  which  is  to  be  construed  in  £  142,  n.  (<?).     Under  this  doctrine,  car- 

the  usual  way.     Where  a  demand  must  ried   to  its  extreme  limit,  a  liability  to 

be  made   before   bringing  an  action,  it  a    suit    upon   a  claim   might    continue 

is  plain  that  in  a  strict  sense  the  cause  for  an  indefinitely  long  time.     The  ex- 

<  *  action  does    not    accrue    until    after  treme  doctrine  in  the  other  direction  is 

the    demand.     Whether    the  creditor's  that  the    '  cause  of  action  accrues  for 

rights    may   not   be    lost    by    delay    in  the    purpose  of  setting   the  statute  in 

miking    a    demand    when    no   time   is  motion   as  soon  as  the  creditor   by  his 

I  for  it,  is  a  question  which  is  an-  own  act,  and  in  spite  of  the  debtor,  can 

red  differently  in  different  jurisdic-  make  the  demand  payable.'     Palmers. 

It  has  sometimes  teen  held,  or  Palmer,  36    Mich.    487,   494;    Ware   v. 

inj/!v  assumed,  tint  even  if  many  Hewey,    57    Me.    391;   Sanford    v.    Lan- 

.iu-   permitted   t<>  "lapse  without  caster,    81    Me.  434;   Pittsburg   &   Cor- 


'"§  Il8.]  WHEN   STATUTE   BEGINS   TO    RUN.  289 

ever,  a  note  or  other  obligation,  involving  only  the  payment 
-of  money,  is  made  payable  "  at  sight  "  or  "on  demand,"  as  an 
action  thereon  can  be  commenced  at  once,  and  the  service  of  the 
writ  is  a  sufficient  demand,  it  becomes  due  instanter,  and  the 
statute  begins  to  run  thereon  from  the  date  of  the  note ; '  and 
the  fact  that  it  is  payable  with  interest  does  not  change  the  rule 
or  warrant  the  presumption  that  a  delay  in  making  the  demand 
was  contemplated.2     A  note  or  bill  payable   at   sight  is  payable 

1  Cook  v.  Cook,  19  Tex.  434;  Hall  v.  Letts,  21  Iowa,  596;  Darnall  v.  Magruder. 
1  H,  &  G.  (Md.)  439;  Easton  v.  McAllister,  1  Mo.  662;  Wilks  v.  Robinson,  3 
Rich.  (S.  C.)  182;  Larason  v.  Lambert,  12  N.  J.  L.  247;  Hill  v.  Henry,  17  Ohio, 
-g;  Newman  v.  Kettell,  13  Pick.  (Mass.)  418;  Hirst  v.  Brooks,  50  Barb.  (N.  Y.) 
334;  Wenman  v.  Mohawk  Ins.  Co.,  13  Wend.  (N.  Y.)  267;  Caldwell  v.  Rodman, 
5  Jones  (N.  C.)  L.  139;  Taylor  v.  Witman,  3  Grant's  Cas.  (Penn.)  138;  Fell's 
Point  Savings  Institution  v.  Weedon,  18  Md.  320;  White's  Bank  v.  Ward,  35 
Barb.  (N.  Y.)  637;  Little  v.  Blunt,  9  Pick.  (Mass.)  488;  Norton  v.  Ellam,  2 
M.  &  W.  467;  Peaslee  v.  Breed,  10  N.  H.  489.  If  the  note  has  no  date,  then  the 
statute  runs  from  its  delivery.  Smyth  v.  Bythewood,  1  Rice  (S.  C.)  245.  See 
Byles  on  Bills,  342.  Where,  as  in  some  of  the  States,  the  statute  fixes  a  time 
within  which  such  notes  will  be  treated  as  maturing,  in  order  to  charge  an 
indorser,  the  time  named  therein  for  presentment  and  notice  of  protest  would 
probably  be  treated  as  the  time  when  the  right  of  action  thereon  matures  and 
the  statute  begins  to  run  upon  the  note,  unless,  as  may  be  done,  a  demand  is 
actually  made  before;  in  which  case  the  statute  would  begin  to  run  from  the 
time  demand  was  actually  made. 

5  Norton  v.  Ellam,  supra;  Wheeler  v.  Warner,  47  N.  Y.  519;  Hirst  v.  Brooks, 
•50  Barb.  (N.  Y.)  334.  But  upon  a  certificate  of  deposit  payable  on  demand  and 
bearing  interest  the  statute  does  not  begin  to  run  until  a  demand  is  made. 
Payne  v.  Gardiner,  29  N.  Y.  146.  But  in  Meador  v.  Dollar  Savings  Bank,  56 
Ga.  605,  a  bank  certificate  of  deposit  payable  to  the  order  of  the  depositor,  but 
indicaiing   no   time   of   payment  other   than  can    be   inferred   from  the   words, 

nellsville   Railroad  v.  Byers,  32    Penn.  ject.     *     *     *     We  are  of  opinion  that 

St    22;   Morrison  v.   Mullin,   34  id.    12;  the  true  principle  is  that  the  time  when 

RhLies  v.   Evans,  66  id.   192,  195.     In  the    demand    must    be    made  depends 

some  of  these  cases  the  language  of  the  upon   the  construction  to  be  put  upon 

contract  was  interpreted  like  that  of  a  the  contract   in   each   case."     See  also 

note  payable  on  demand,  which  creates  Lvdig  v.  Braman,   177   Mass.   212.  219; 

a  liability  to  a  suit  without  a  previous  Kraft  v.  Thomas,  123  Ind.  513;  O'Neil 

demand.   In  some  of  the  cases  it  is  held  v.  Magner,  81  Cal.  631. 

that  a  demand  must  be  made  within  a  In  England  it  is  held  that  when  there 

reasonable  time,  and  that  a  reasonable  is   a    present   debt   and   a   covenant  or 

time  will  not  in  any  event  extend   be-  promise  to  pay  on  demand,  the  demand 

yond    the   statute    period   for  bringing  is  not  a  condition  precedent  to  the  ac- 

such  an  action.  High  v.  County  Com'rs,  tion.  but    when    there  is  a  covenantor 

■92  Ind.  580,  588;   Keithler  v.  Foster,  22  promise   to    pay   a    collateral    sum    on 

Ohio   St.  27;   Atchison,  etc.,  R.  Co     v.  demand,  as  in    the  case  of  a  covenant 

Burlingame    Township,    36    Kan.    628.  by  a   surety   for  the   principal    debtor, 

•(See  Shaw  v.  Silloway,  145   Mass.  503.)  then  request  must  be  made  before  ac- 

In  New  York,  Alabama,  and  Tennessee  tion  brought.     Brown  v.  Brown,  [1S93] 

there   are  statutes  regulating  the  sub-  2  Ch.  300. 
[stats,  of  lim.  —  19] 


29O  STATUTES    OF    LIMITATION.  [CHAP.    X. 

immediately,  and  neither  presentment  nor  demand  is  a  condition 
precedent  to  payment,  consequently  the  statute  attaches  thereto^ 
from  the  day  of  its  date.1  Where  money  is  loaned  "  to  be  paid 
when  called  for,"  it  is  treated  as  payable  on  demand,  and  the 
statute  begins  to  run  from  the  date  of  the  loan ; 2  and  the  same 
is  true  as  to  money  loaned  to  be  paid  "  when  called  on  to  do 
so. "  3  A  note  drawn  payable  "  one  day  after  "  a  certain  event 
happens,  is  not  due  until  the  day  after  the  occurrence  of  the  event. 
The  maker  has  all  of  that  day  in  which  to  pay  the  money,  and 
an  action  commenced  during  the  day  would  be  premature.  Con- 
sequently an  action  upon  it  is  not  barred  until  the  lapse  of  the 
time  allowed  after  that  day,  and  not  including  it.4  Where,  how- 
ever, a  note  or  bill  is  payable  after  sight,  no  debt  accrues  thereon 
until  presentment.  Therefore  the  statute  is  no  bar  to  an  action 
on  such  a  note,  unless  it  has  been  presented  for  payment  six 
years  before  the  action,  the  expressions  "after  date"  and 
"  after  sight  "  not  being  synonymous.3 

A  bill  or  note  payable  after  demand  or  after  notice  is  not  pay- 

"  interest  at  the  rate  of  seven  per  cent,  on  call,"  was  held  to  be  payable  on 
demand.  In  Tripp  v.  Curtenius,  36  Mich.  494,  such  a  certificate  payable  to 
order,  on  return  of  the  certificate  is  payable  on  demand.  A  note  payable  on 
demand  is  due  presently,  even  though  it  contains  a  clause  providing  that  it.  shall 
not  draw  interest  "  during  the  life  of  "  the  promisor,  and  from  those  words  the 
court  will  not  infer  that  it  was  only  to  become  payable  after  his  death.  New- 
man v.  Kettle,  13  Pick.  (Mass.)  418.  In  Holland  v.  Clark,  32  Ark.  697,  this  dis- 
tinction is  noticed  between  the  time  when  the  statute  begins  to  run  against  a 
note  entitled  to  grace,  where  a  demand  is  made,  and  where  no  demand  is  made. 
In  the  former  case,  if  a  demand  is  made  on  the  last  day  of  grace,  the  statute  is 
held  to  begin  to  run  from  that  day;  but  if  no  demand  is  made,  it  does  not 
begin  to  run  until  the  succeeding  day.  Bulkley  v.  United  States,  9  Ct.  of  CI. 
(U.  S.)  517.  Where  a  note  is  given  without  interest,  but  a  separate  instrument 
is  at  the  same  time  executed  agreeing  to  pay  interest  thereon,  the  two  instru- 
ments are  treated  as  one,  and  the  statute  attaches  to  both  at  the  same  time_ 
Prevo  v.  Lathrop,  2  111.  3015.  In  such  a  case,  if  the  interest  is  usurious  and  the 
notes  representing  the  interest  are  first  paid,  the  payment  will  be  treated  as 
having  been  made  on  account  of  the  principal  debt,  for  which  the  borrower  is 
legally  liable,  and  the  right  to  recover  back  money  paid  as  usury  will  not  arise 
until  the  whole  debt  is  paid.     Booker  v.  Gregory,  7  B.  Mon.  (Ky.)  439. 

1  Bytes  on  Hills,  342,  iuh  Eng.  ed. 

1  Ware  v.  Hervey,  57  Me.  391. 

'  I)  11  n-ill  v.  Magruder,  1  H.  &  G.  (Md.)  439. 

*  II  uhaway  v.  Patterson,  45  Cal.  294. 

1  Holmes  v.  Kerrison,  2  Taunt.  323;  Sturdy  v.  Henderson,  4  B.  &  Aid.  592;. 
S.itton  v.  Toomer,  7  H.  &  C.  416. 


§   Il8.]  WHEN    STATUTE   BEGINS   TO    RUN.  2QI 

able  till  demand  made  or  notice  given.1  In  Michigan,2  the  doc- 
trine, as  previously  stated  in  reference  to  a  note  payable  one 
day,  etc.,  after  demand,  was  repudiated,  and  a  note  payable 
"  thirty  days  after  demand  "  was  held  to  become  due  and  pay- 
able in  thirty  days  after  its  date,  and  that  the  statute  then  com- 
menced to  run  thereon,  unless  a  demand  had  been  made  thereon 
within  six  years  from  its  date.      This  case,  as  well  as  the  Penn- 

1  See  Thorpe  v.  Booth,  Ry.  &  M.  388;  Clayton  v.  Gosling,  5  B.  &  C.  360; 
Brown  v.  Rutherford.  14  Ch.  D.  687. 

2  Palmer  v.  Palmer,  36  Mich.  4S7,  24  Am.  Rep.  605.  Campbell,  J.,  here  said: 
"  It  is  now  well  settled  that  a  note  payable  on  demand  is  payable  at  once  and 
without  demand,  so  that  the  statute  runs  from  its  delivery.  And  this  rule  has 
been  applied  where,  from  the  form  of  the  contract,  it  is  manifest  that  immediate 
payment  was  not  expected.  Thus  in  Norton  v.  Ellam,  2  M.  &  W.  461.  the  note 
called  for  interest,  which  indicated  at  least  an  expectation  cjf  some  delay.  In 
Howland  v.  Edmonds,  24  N.  Y.  307,  the  premium  capital  notes  of  a  mutual 
insurance  company,  payable  '  in  such  portions  and  at  such  time  or  times  as  the 
directors  of  said  company  may,  agreeably  to  their  act  of  incorporation,  require,' 
were  held  to  stand  on  the  same  fooling  with  ordinary  demand  notes,  so  that 
the  statute  began  to  run  from  date.  In  Waters  v.  Thanet,  2  Q.  B.  757,  a  party 
had  promised  to  pay  the  amount  of  certain  dishonored  bills  '  whenever  my  cir- 
cumstances may  enable  me  to  do  so,  and  I  may  be  called  upon  for  that  purpose.' 
This  promise  was  made  in  1803.  An  action  was  begun  in  183S,  less  than  six 
years  after  demand,  and  within  a  year  after  the  plaintiff  had  learned  of  defend- 
ant's having  become  solvent  through  inheritances.  It  appeared  that  he  had 
actually  become  able  to  pay  in  1825,  and  the  court  held  that  the  statute  ran 
from  such  ability  without  demand.  A  similar  decision  was  made  in  Jones  v. 
Eisler,  3  Kan.  134,  where  the  note  was  payable  when  the  maker  received  a 
payment  from  government,  or  as  soon  as  otherwise  convenient.  The  statute  was 
held  to  run  after  a  reasonable  time,  which  there  was  held  on  the  facts  to  have 
been  not  later  than  sixty  days.  See  Emery  v.  Day,  1  C.  M.  &  R.  245.  Such 
notes  are  very  rarely  given.  In  Holmes  v.  Kerrison,  2  Taunt.  323,  it  was  held 
that  a  note  payable  after  sight  was  not  barred  until  six  years  after  it  had  been 
presented  for  payment.  And  in  Thorpe  v.  Booth,  Ry.  &  M.  388,  upon  the 
authority  of  that  decision,  a  note  dated  March  12,  1813,  payable  twenty-four 
months  after  demand,  and  not  demanded  until  June  28,  1823,  was  held  not 
barred.  In  Holmes  v.  Kerrison,  the  case  is  put  without  further  reasoning,  upon 
the  ground  that  no  action  could  have  been  brought  until  after  presentment, 
and  Thorpe  v.  Booth  contains  no  reasoning  at  all.  While  these  decisions  seem 
to  have  settled  the  practice  in  England,  no  subsequent  case,  so  far  as  we  have 
been  informed,  seems  to  have  affirmed  or  vindicated  them  in  any  direct  way, 
although  they  are  probably  adhered  to.  But  so  far  as  their  principle  is 
involved,  it  has  been  departed  from  to  some  extent  at  least.  In  Webster  v. 
Kirk,  17  Q.  B.  944.  it  was  held  that  a  payee  who  had  been  sued  by  a  subsequent 
holder  of  a  dishonored  bill  could  not  in  turn  sue  the  drawer  more  than  six 
years  after  the  dishonor  of  the  paper,  although  a  much  less  time  had  elapsed 
since  his  own  liability  had  been  enforced.     It  was  urged  thai  the  payee  could 


292  STATUTES   OF   LIMITATION.  [CHAP.   X. 

sylvania  case,  relied  upon  by  the  court,1  are  put  upon  the  equi- 
table ground  of  laches,  and  cannot  be  said  to  express  a  strictly 
legal  rule.  Even  though  it  did  express  such  a  rule,  it  is  entitled 
to  little  weight  in  view  of  decisions  adverse  thereto,2  and 
also  in  view  of  the  fact  that  in  England,  and  also  in  Maryland 
where  it  is  held  that,  when  a  note  or  contract  is  payable  or  to  be 
performed  a  certain  number  of  days,  weeks,  months,  or  years 
after  demand,  a  right  of  action  does  not  accrue,  or  the  statute 
begin   to   run,  until   demand    is   made.3      The   statute   does   not 

not  sue  on  a  note  which  he  did  not  hold,  and  that  no  action  therefor  accrued  to 
him  until  he  was  damnified.  But  the  Court  of  Queen's  Bench  held,  neverthe- 
less, that  the  statute  ran  from  the  dishonor.  This  could  only  have  been  upon 
the  ground  that  any  of  the  parties  might  have  taken  up  the  paper  and  thus 
obtained  a  right  of  action.  Clayton  v.  Gosling,  5  B.  &  C.  360.  In  the  United 
States  there  have  been  some  incidental  recognitions  of  the  doctrine  of  Holmes 
v.  Kerrison,  Thrall  v.  Mead,  40  Vt.  540,  Stanton  v.  Estate  of  Stanton,  37  id. 
411,  and  Wolfe  v.  Whiteman,  4  Harr.  (Del.)  246,  appear  to  adopt  it.  In  New 
York  there  are  dicta  to  the  same  effect  in  Wenman  v.  Mohawk  Ins.  Co.,  13 
Wend.  (N.  Y.)  267;  Bruce  v.  Tilson,  25  N.  Y.  194,  and  Howland  v.  Edmonds, 
24  id.  307.  No  such  point  arose  in  any  of  these  cases,  and  the  actual  decision 
in  each  of  them  is,  in  our  opinion,  difficult  to  harmonize  with  any  such  princi- 
ple. In  Morrison  v.  Mullin,  34  Per.n.  St.  12,  it  was  held  that,  where  a  demand 
was  necessary  to  found  an  action  upon,  the  demand  was  barred  unless  made  in 
six  years,  and  the  right  of  action  extinguished  by  the  delay.  We  cannot  but 
think  this  to  be  sound  doctrine;  whatever  may  have  been  the  ancient  prejudice 
against  statutes  of  limitation,  they  are  now  regarded  as  just,  and  entitled  to  be 
fairly  construed. 

1  Morrison  v.  Mullin,  34  Penn.  St.  12;  also  Pittsburgh,  etc.,  R.  R.  Co.  v.  Ryers, 
32  id.  22.  This  doctrine  works  a  practical  abrogation  of  the  contract  of  the 
parties,  and  seems  a  misapplication  of  the  statutes,  and  one  never  contemplated 
by  the  legislature.  The  doctrine  embodied  in  this  case  is  opposed  to  all  the 
authoritative  authorities  which  is  an  erroneous  construction  of  the  contract  of 
the  parties,  and  has  no  foundation  in  reason  or  principle.  Thorpe  v.  Booth, 
Ry.  &  M.  388;  Sutton  v.  Toomer,  7  B.  &  C.  416;  Sturdy  v.  Henderson,  4 
B.  &  Aid.  592;  Clayton  v.  Gosling,  5  B.  &  C.  360.  In  Wolfe  v.  Whiteman,  4 
Harr.  (Del.)  246,  it  was  held  that  a  note  payable  "  on  "  or  "  after  sight  "  did 
not  become  payable  until  after  demand  is  made  for  payment.  In  Wenman  v. 
Mohawk  Ins.  Co.,  13  Wend.  (N.  Y.)  267,  it  was  held  that  a  note  payable  at  a 
Riven  time  after  demand,  is  actuallv  made,  and  that  the  statute  does  not  begin 
\<>  run  until  demand  is  actually  made.  See  also  Wright  v.  Hamilton,  2  Bailey 
(S.  C.)  5t.  In  Little  v.  Blunt,  9  Pick.  (Mass  )  488,  countenance  is  also  given  to 
this  doctrine.     See/V.r/,  chapter  on  Bills  and  Notes. 

'  Brown  v.  Rutherford,  14  Ch.  D.  687. 

*  Rhind  v.  Hyndman,  54  Md.  527.  In  this  case  Barthol,  C.  J.,  said.  "  To 
determine  the  second  question  we  must  refer  to  the  language  of  the  statute. 
This  provides  that  '  the  action  shall  be  commenced  or  sued  within  three  years 
from  the  time  the  cause  of  action  accrues.'     1  Code,  art.  57,  §  I.     The  contract 


§  1 1 8.]  WHEN   STATUTE   BEGINS   TO    RUN.  293 

begin  to  run  in  favor  of  a  bailee,  or  of  a  person  who  borrows 
goods  for  an  indefinite  time  until  he  denies  the  bailment  and 
converts  the  property.1  Nor  does  it  run  against  an  action  by 
the  mortgagor  of  chattels  to  redeem  until  the  possession  of  the 
mortgagee  becomes  adverse,  and  this  is  so  although  an  action 
for  the  debt  secured   by  the   mortgage   is  barred.2     The  statute 

sued  on  in  this  case  was  to  be  performed  '  on  or  after  the  fifteenth  day  of  Octo- 
ber, 1875,  when  the  same  should  be  demanded.'  The  cause  of  action  therefore: 
did  not  accrue  until  demand  was  made.  According  to  the  terms  of  the  statute, 
limitations  would  begin  to  run  from  that  time.  This  has  been  repeatedly 
decided.  See  King  v.  Mackellar,  109  N.  Y.  215.  In  Holmes  v.  Kerrison,  2 
Taunt.  323,  in  the  King's  Bench,  the  note  sued  on  was  payable  after  sight;  it 
was  held  that  suit  was  not  barred  till  six  years  after  it  had  been  presented  for 
payment.  Similar  decisions  were  made  in  Topham  v.  Braddick,  1  Taunt.  572; 
Thorpe  v.  Coombe,  8  Dow.  &  Ry.  347.  The  doctrine  of  Holmes  v.  Kerrison  has 
been  often  recognized  in  this  country.  Stanton  v.  Estate  of  Stanton,  37  Vt.  411; 
Thrall  v.  Mead,  40  id.  540;  Little  v.  Blunt,  9  Pick.  (Mass.)  488;  Wenman  v. 
Mohawk  Ins.  Co.,  13  Wend.  (N.  Y.)  267;  Wolfe  v.  Whiteman,  4  Harr.  (Del.)  946. 
Other  cases  might  be  cited.  In  Fells'  Point  Savings  Institution  v.  Weedon, 
18  Md.  320,  on  a  certificate  of  deposit  payable  on  demand,  it  was  said,  '  the 
statute  began  to  run  when  demand  was  made.'  In  support  of  a  different  doc- 
trine, the  counsel  for  appellees  have  cited  several  cases,  in  which  it  has  been 
held  that  where  the  contract  is  to  be  performed  on  demand,  if  the  demand  be 
unnecessarily  delayed  beyond  the  time  limited  by  the  statute,  the  action  will 
be  barred.  Thus,  in  Pittsburgh  &  Connellsville  R.  R.  Co.  v.  Ryers,  32  Penn. 
St.  22,  which  was  a  suit  to  recover  upon  a  subscription  to  stock,  the  court  said, 
although  the  statute  of  limitations  does  not  begin  to  run  against  a  subscription 
to  the  stock  of  a  railroad  company  till  after  calls  are  made  for  instalments,  yet 
when  no  call  is  made  for  more  than  six  years  from  the  date  of  the  subscription, 
the  law  will  presume  an  abandonment  of  the  enterprise,  and,  from  analogy  to 
the  statute,  bar  the  recovery.  So  in  Morrison  v.  Mullin,  34  Penn.  St.  12,  it  was 
decided  that  '  where  a  demand  was  necessary  to  found  an  action  upon, 
the  demand  was  barred  unless  made  in  six  years,  and  the  right  of  action 
extinguished  by  the  delay.'  That  decision  was  followed  in  Palmer  v. 
Palmer,  36  Mich.  487.  The  cases  in  Pennsylvania  and  Michigan  were  not 
strictly  decisions  at  law  on  the  construction  of  the  statute;  they  were  decided 
by  courts  exercising  equitable  jurisdiction,  and  consequently  stand  upon 
different  grounds,  like  Codman  v.  Rogers,  10  Pick.  112,  and  Little  v.  Blunt,  9 
id.  490,  where  the  equitable  doctrine  of  laches  was  applied.  In  Little  v.  Blunt 
the  legal  rule  was  recognized.  The  court  say,  '  But  if  the  promise  had  been  of 
a  collateral  thing,  which  would  create  no  debt  until  demand,  it  might  be  other- 
wise. It  is  clear  that  where  no  action  will  lie  without  a  previous  demand 
*  *  *  in  all  such  cases  no  cause  of  action  accrues  until  after  demand  made, 
and  the  statute  of  limitations  will  begin  to  run  from  the  time  of  the  demand, 
and  not  from  the  time  of  the  promise.  This  distinction  is  obvious  and  will 
reconcile  all  the  cases.'" 

1  Reizenstein  v.  Marquardt,  75  Iowa,  294. 

'Shoecraft  v.  Beard,  20  Nev.  182. 


294  STATUTES   OF   LIMITATION.  [CHAP.   X. 

does  not  begin  to  run  in  favor  of  the  borrower  of  stock  until 
after  the  demand  is  made,1  nor  against  the  right  of  the  owner  of 
stock  to  the  dividends  thereon.3  (a) 

Where  a  contract  is  made  to  do  an  act  which  it  is  evident  it 
was  not  intended  by  the  parties  should  or  would  be  done  until 
certain  other  things  were  done,  the  statute  does  not  begin  to  run, 
until  a  reasonable  time  after  such  other  things  are  done.  Thus, 
where  a  railroad  company  agreed  with  a  landowner  to  construct 
a  crossing  so  as  to  enable  the  owner  of  land  cut  off  from  the  rest 
of  his  tract  by  the  company's  proposed  road  to  reach  it  for 
the  purposes  of  cultivation,  to  construct  such  crossing,  and  in  an 
action  for  the  breach  of  such  contract  set  up  the  statute  of  lim- 
itations as  a  bar,  it  was  held  that  the  statute  did  not  begin  to  run 
upon  the  contract  until  a  reasonable  time  after  the  railroad  was 
constructed.3 

Where  a  note  is  made  payable  in  a  specified  time,  containing  a 
provision  that  it  shall  become  due  when  certain  things  are  done, 
it  does  not  become  due,  nor  does  the  statute  begin  to  run,  until 
such  things  are  done,  whether  the  six  months  named  in  the  note 
have  elapsed  or  not.4 

Where  an  accommodation  maker  of  a  note  pays  it  or  a  part  of 
it,  his  right  of  action  against  the  payee  accrues  at  the  time  of 
such  payment,  and  the  statute  begins  to  run  from  that  time.3 

Dividends  which  are  declared  on  stock  in  a  corporation  are 
payable  on  demand,  and  the  statute  does  not  begin  to  run 
against  the  person  entitled  thereto  until  demand  is  made." 

So  where  property  is  in  the  hands  of  one  tenant  in  common, 
as  his  possession  is  treated  to  be  the  possession  of  his  co-tenant,  the 
statute  does  not  begin  to  run  until  the  co-tenant  has  made  a  demand 
for  his  share  of  the  property,  or  his  rights  have  been  denied.7 

1  Parker  v.  Gaines  (Ark.),  n  S.  W.  693. 
8  Louisville  Bank  v.  Gray,  84  Ky.  565. 
3  International  &  3.  N.  R.  Co.  v.  Pape,  73  Tex.  501. 
*  Robertson  v.  Cates.  74  Tex.  40S.  12  S.  W.  54. 

6  Frank  v.  Brewer,  7  N.  Y.  S.  92;  Goodenough  v.  Wells,  76  Iowa,  774;  Harvey 
v.  National  L.  Ins.  Co.,  60  Vt.  209. 

e  Arm  ant  v.  New  Orleans  &  C.  R.  Co.,  41  La.  Ann.  1020. 
1  McClure  v.  Colyear,  80  Cal.  378. 

(<i)  When  an  option  of  purchasing  an  for  the  recovery  of  the  articles  until 
article  is  given  at  the  expiration  of  the  opiion  expires.  Standard  Sewing- 
a  lease,   there    is   no   cause   of   action     Machine  Co.  v.  Frame  (Del.),  48  Atl.  188. 


I   119.]  WHEN    STATUTE   BEGINS   TO    RUN.  295 

So  where  property  has  been  loaned  to  another,  the  statute 
does  not  begin  to  run  until  its  return  has  been  demanded.1 

As  to  the  right  to  recover  stolen  property,  the  same  rule  pre- 
vails, because  until  such  demand  the  possession  is,  in  contempla- 
tion of  law,  in  the  owner.2 

Upon  a  deposit  of  money  to  be  accounted  for  on  request  or 
payable  on  demand,  the  statute  does  not  begin  to  run  until 
demand  is  ma.de.3  (a) 

And  the  same  is  true  where  money  is  loaned  under  a  contract 
that  it  shall  be  payable  after  notice  of  intention  to  withdraw  it. 
The  statute  does  not  begin  to  run  against  the  lender  until  demand 
is  made  therefor.4 

Where  a  contract  or  note  is  payable  in  specific  articles  or  in 
services  or  in  anything  but  money,  the  statute  does  not  begin  to 
run  until  demand  for  payment  is  made.5 

Where  a  note  is  payable  a  certain  number  of  days  after  the 
happening  of  a  certain  event,  the  statute  does  not  begin  to  run 
until  the  promisee  has  actual  knowledge  or  notice  of  the  happen- 
ing of  that  event,  or  until  such  time  when  by  the  exercise  of 
ordinary  diligence  he  ought  to  have  had  notice  thereof.6 

SEC.  1 19.  General  Rules  as  to  when  there  is  a  Condition  Prece- 
dent. —  By  sec.  3  of  the  statute  of  James  it  is  enacted  that  the 
different  periods  within  which   the   remedies   for  the   cases    pro- 

1  Fry  v.  Clow,  50  Hun  (N.  Y.)  574;   Reeves  v.  Nye,  28  Neb.  571. 

2  Duryea  v.  Andrews,  58  Hun  (N.  Y.)  607. 

3  Sheldon  v.  Sheldon,  58  Hun  (N.  Y.)  601.  The  statute  does  not  run  against 
a  claim  for  interest  on  deposits,  agreed  to  be  credited  semi-annually  by  the 
bank,  until  notice  is  given  to  the  depositor  that  the  bank  has  ceased  to  credit 
such  interest.  Marion  National  Bank  v.  Fidelity,  etc.,  Co.,  12  Ky.  L.  R.  492. 
A  check  drawn  upon  a  bank  for  the  whole  balance  shown  on  a  deposit  book  is 
not  a  demand  upon  a  bank  for  the  amount  of  the  overcharge  for  a  check  previ- 
ously drawn  which  will  set  the  statute  running  against  an  action  to  recover 
such  an  overcharge.  Goodell  v.  Brandon  Nat.  Bank,  63  Vt.  303.  In  Massa- 
chusetts the  statute  dees  not  begin  to  run  in  favor  of  a  bank  in  which  deposits 
are  made  until  there  has  been  something  equivalent  to  a  refusal  on  the  part  of 
the  bank  to  pay  or  a  denial  of  liability.  Dickinson  v.  Leominster  Savings 
Bank,  152  Mass.  49. 

4  Atkinson  v.  Bradford  Building  Society,  25  Q.  B.  D.  377. 

5  Weymouth  v.  Gile,  83  Me.  437. 

6  Hall  v.  Roberts,  58  Hun  (N.  Y.)  539. 

(a)  As  to  deposits  with  bankers,  see  supra,  §  17;  Girard  Bank  v.  Bank  of  Penn 
Township  (39  Penn.  St.  92),  80  Am.  Dec.  507,  and  note;  Munnerlyn  v.  Augusta 
Sav.  Bank,  88  Ga.  333. 


296  STATUTES   OF   LIMITATION.  [CHAP.   X.. 

vided  for  are  to  be  pursued  are  to  be  reckoned  (except  as  to  slan- 
der) from  the  time  the  respective  causes  of  action  accrue,  and 
this  is  the  provision  in  all  of  our  statutes,  except  that  no  excep- 
tion is  made  as  to  actions  for  slander.1     This  is  doubtless  true, 

1  Banks  v.  Coyle,  2  A.  K.  Mar.  (Ky.)  564;  Hall  v.  Vandegrift,  3  Binn.  (Penn.) 
374;  Jones  v.  Conway,  4  Yeates  (Penn.)  109;  Odlin  v.  Greenleaf,  3  N.  H.  270; 
Richman  v.  Richman,  10  N.  J.  L.  114;  Raymond  v.  Simonson,  4  Blackf.  (Ind.)-. 
77;  Mayfield  v.  Seawell,  Cooke  (Tenn.)  437;  Stewart  v.  Durrett,  3  T.  B.  Mon. 
(Ky.)  113;  Hardee  v.  Dunn,  13  La.  Ann.  161;  Withers  v.  Richardson,  5  T.  B. 
Mon.  (Ky.)  94;  Ferris  v.  Williams,  1  Cranch  C.  C.  475;  Davis  v.  Eppinger,  18 
Cal.  3;S.  So,  by  the  civil  law,  prescription  does  not  begin  to  run  until  the 
creditor  has  a  full  and  perfect  right  to  prosecute  his  demand.  Evans's  Pothier. 
404.  This  rule  prevails  equally  at  law  and  in  equity.  2  Story's  Eq.  Juris., 
§  1521  a.  Bruce  v.  Tilson,  25  N.  Y.  194,  holds  that  the  statute  begins  to  run 
from  the  time  when  the  plaintiff  can  bring  his  equitable  action,  and  is  charged 
with  notice  that  his  right  is  denied.  Time  runs  in  the  defendant's  favor  from 
the  date  when  a  cause  of  action  accrued,  even  although  from  any  cause,  such 
as  poverty  of  the  defendant,  an  action  would  then  have  been  fruitless.  Emery 
v.  Day,  1  C.  M.  &  R.  245.  A  cause  of  action  accrues  when  work  is  done 
although  it  may  be  that  the  parties  cannot  get  satisfaction  until  afterwards. 
Wormwell  v.  Hailstone,  6  Bing.  668;  otherwise,  perhaps,  where  there  is  a 
special  contract  as  to  time  of  payment.  Wittersheim  v.  Carlisle,  1  H.  Bl.  631. 
So  in  cases  of  mistake,  time  runs  from  the  date  of  the  mistake,  not  from  the 
date  of  discovery. (n)  Bree  v.  Holbech,  2  Doug.  655.  When  a  right  becomes 
complete,  a  right  of  action  accrues,  and  only  from  that  time;  except  in  cases 
where  a  statutory  disability  exists,  or  the  ciaim  is  brought  under  a  statutory 
exception.  Richman  v.  Richman,  10  N.  J.  L.  114;  Banks  v.  Coyle,  2  A.  K. 
Mar.  (Ky.)  564;  Raymond  v.  Simonson,  4  Blackf.  (Ind.)  77;  Jones  v.  Conoway, 
4  Yeates  (Penn.)  109;  Mansfield  v.  Seawell,  Cooke  (Tenn.)  437;  Odlin  v.  Green- 
leaf,  3  N.  H.  270;  Hardee  v.  Dunn,  13  La.  Ann.  161;  Hall  v.  Vandegrift,  3  Binn, 
(Penn.)  374;  Withers  v.  Richardson,  5  T.  B.  Mon.  (Ky.)  94.  Whenever  the  con- 
tract of  the  defendant  is  not  absolute  in  the  first  instance,  for  the  performance 
of  some  particular  act  or  duty,  but  is  dependent  upon  some  condition  precedent, 
or  something  to  be  done  on  the  part  of  the  plaintiff  or  some  third  person,  the 
cause  of  action  does  not  arise  until  the  condition  has  been  accomplished, 
because,  until  those  events  occur,  no  right  to  sue  exists.  Fenton  7'.  Emblers, 
1  W.  Bl.  353;  Savage  v.  Aldren,  2  Stark.  232  Where  a  bond  or  other  obliga- 
tion is  given,  payable  after  the  death  of  a  certain  person  named,  the  statute 
does  not  begin  to  run  until  such  person's  decease,  however  long  the  time  since 
the  bond  or  obligation  was  executed.  Tuckey  v.  Hawkins,  4  C.  B.  664;  Sanders 
v.  Coward,  15  M.  &  W.  56.  So  where  a  contract  for  services  provides  that  pay- 
ment shall  be  made  by  a  provision  in  the  employer's  will,  a  right  of  action  does 

(1)  See   Alabama   &    Vicksburg   Ry.  covered  twenty  years  after  decedent's 

'  [ones  (73  Miss,  no),  55  Am.  St.  estate  has  been  distributed  among  his 

Rep,  488,  ?i5,  n.      In  equity  the  rights  next   of   kin.     Craufurd    v.    Smith,    93 

p  irties  to  a  mutual  and  innocent  Va.  623;  2   Story,    Eq.  Jur.   (13th    ed.), 

mistake   of    fact   are    not   impaired    by  £  1521a.     See  Fox  v.  Fee,  167  N.  Y.  44; 

•>[   time,  as    where  a   will   is  (lis-  Gould  v.  Emerson,  160  Mass.  438. 


§  119.]  WHEN   STATUTE    BEGINS    TO    RUN.  297 

independently  of  the  statutory  provision.  It  is  necessary  in  each 
case  to  consider,  with  reference  to  the  statutes  of  limitation,  at 
what  time  the  cause  of  action  arose  —  a  question  which  is  often 
one  of  difficulty.  Adopting  the  rule  that  a  cause  of  action,  or, 
perhaps,  a  complete  cause  of  action,  is  the  necessary  point  of 
commencement,  time  will  not  commence  to  run  in  case  of  a  con- 
tingent promise  until  the  event  has  happened  on  which  the  con- 
tingency depends.  Thus,  if  a  man  promise  to  pay  ,£10  to  J.  S. 
when  he  is  married  or  when  he  comes  from  Rome,  and  ten  years 
after  J.  S.  is  married  or  returns  from  Rome,  the  right  of  acction 
accrues  upon  the  happening  of  that  contingency,  and  from  that 
time  the  statute  will  commence  to  run,  and  not  from  the  earlier 
date  of  the  promise.1     The  rule  may  be  said  to  be,  Whenever 

not  accrue  until  after  the  employer's  death,  because  up  to  that  period  there  has 
been  no  breach.  Nimms  v.  Walker,  14  La.  Ann.  581.  So  generally,  when  a 
party  stands  in  a  position  to  enforce  a  claim  by  an  action  at  law,  the  statute 
then  begins  to  run.  Amott  v.  Holden,  22  L.  J.  Q.  B.  19;  Blair  v.  Ormond,  20 
id.  452;  Whitehead  v.  Lord,  21  L.  J.  Exch.  239;  Bill  v.  Lake,  Hetl.  138;  How- 
land  v.  Cuykendall,  40  Barb.  (N.  Y.)  320;  Bowles  v.  Elmore,  7  Gratt.  (Va.)  3S5. 
When  a  particular  date  for  the  completion  of  a  contract  is  agreed  upon,  a  right 
accrues  at  that  date.  Helps  v.  Winterbottom,  2  B.  &  Ad.  431;  Shutford  v. 
Borough,  Godb.  437;  Irving  v.  Veitch,  3  M.  &  W.  90,  no;  Wittersheim  v.  Car- 
lisle, 1   H.  Bl.  635. 

1  Bac.  Abr.  Lim.  230,  D.  3;  Savage  v.  Aldren,  2  Stark.  232;  Fenton  v. 
Emblers,  1  W.  Bl.  353;  Jones  v.  Lightfoot,  ro  Ala.  17.  In  O'Hara  v.  State  of 
New  York,  112  N.  Y.  146,  it  was  held  that  in  the  case  of  an  imperfect  claim  or 
obligation  which  is  unenforceable  by  reason  of  some  vice  or  defect  therein, 
which  may  be  cured  or  waived  by  the  debtor,  a  right  of  action  arises  thereon  at 
the  time  the  claim  becomes  purged  of  the  vice  by  the  action  of  the  debtor,  and 
not  before.  See  McDougall  v.  State,  109  N.  Y.  80.  In  Budd  v.  Walker,  113 
N.  Y.  637,  in  an  action  for  an  accounting  as  to  moneys  alleged  to  have  been 
placed  in  the  hands  of  S.,  the  defendant's  testator,  by  the  plaintiff  for  invest- 
ment, the  only  evidence  presented  was  a  letter  from  S.  to  the  plaintiff,  which 
after  acknowledging  the  receipt  of  the  money  and  that  it  was  drawing  interest 
at  seven  per  cent.,  continued  as  follows:  "  If  I  can  find  an  opportunity  of  pur- 
chasing a  mortgage  *  *  *  where  I  can,  without  risk,  secure  a  greater  profit, 
I  shall  do  so,  unless  you  wish  to  make  any  other  use  of  the  money;  should  you 
desire  to  use  it,  please  let  me  know."  It  was  held  that  the  relation  of  the 
plaintiff  to  the  decedent  was  that  of  a  creditor  upon  a  simple  contract,  not  that 
of  a  beneficiary  under  a  trust,  that  the  amount  was  payable  at  once  and  the 
statute  then  began  to  run,  and  after  the  lapse  of  six  years  was  a  bar  to  the 
action.  In  Thacher  v.  Hope  Cemetery  Ass'n,  126  N.  Y.  507,  upon  a  certificate 
issued  by  a  cemetery  association  it  appeared  that  the  defendant  received  from 
the  sales  of  lots,  a  sufficient  sum,  applicable  by  the  terms  of  the  certificate  to  its 
payment,  more  than  ten  years  before  the  commencement  of  the  action,  and  it 
was   held    that   the   action  was  barred  by  the  statute   of  limitations,  although 


298  STATUTES    OF    LIMITATION.  [CHAP.   X. 

the  contract  of  the  defendant  is  not  absolute  in  the  first  instance, 
because  of  something  to  be  done  by  the  plaintiff  or  some  third 
person  as  a  condition  precedent,  the  cause  of  action  does  not 
arise  until  the  condition  has  been  accomplished  or  the  precedent 
act  performed.1  (a)     In  such  cases  the  cause   of   action  does  not 

neilher  S.,  the  plaintiff's  testator,  to  whom  the  certificate  was  issued,  nor  the 
plaintiff  had  knowledge  more  than  six  years  before  the  action  was  commenced 
of  the  facts  as  to  the  receipt  of  money  applicable  to  the  payment  of  the  loan; 
that  by  the  terms  of  the  cenificates  ihe  defendant  did  not  become  a  trustee  for 
the  holders,  and  no  trust  was  created  of  any  kind. 

1  Savage  v.  Aldren,  2  Stark.  232;  Fenton  v.  Emblers,  1  W.  Bl.  353.  In  Cape 
Fear  Nav.  Co.  v.  Wilcox,  7  Jor.es  (N.  C.)  L.  4S1,  a  statute  incorporating  a  com- 
pany gave  the  company  a  remedy  for  the  recovery  of  subscriptions  by  a  sale  of 
the  stock  any  time  within  three  years  rtfter  assessment,  and  then  by  a  suit  for 
the  balance  due.  The  court  held  that  a  right  of  action  did  not  accrue  until  after 
a  sale  of  the  stock,  and  that  then  the  company  had  three  years  to  commence  its 
action  in.  See  also  Cape  Fear  Nav.  Co.  v.  Costen,  63  N.  C.  264.  So  where  a 
person  promises  to  pay  any  balance  that  may  be  due  from  him,  the  statute 
begins  to  run  from  the  date  of  the  promise,  and  that,  too,  although  the  stat- 
ute had  nearly  run  upon  the  claim.  In  such  a  case  the  running  of  the  statute 
arrests  the  operation  of  the  statute,  and  it  takes  a  fresh  start  from  that  time. 
Lance  v.  Parker,  1  Mill  (S.  C.)  Const.  16S.  Where  the  payee  of  a  note  receives 
from  the  maker  negotiable  securities  as  collateral,  as  a  note  and  mortgage,  pay- 
ment of  the  debt  secured  by  the  mortgage  by  the  person  against  whom  the 
mortgage  exists,  to  the  person  so  holding  the  note,  if  it  exceeds  the  debt  for 
which  it  was  pledged,  extinguishes  the  debt  for  which  it  was  pledged  as  col- 
lateral; the  pledgee  holds  the  balance  as  trustee  for  the  pledgor,  and  the  statute 
does  not  begin  to  run  in  favor  of  the  pledgee  until  demand  made  therefor  by 
the  pledgor.  Ponce  v.  McElvy,  47  Cal.  154.  Handy  v.  Draper,  89  N.  Y.  334, 
reversing  23  Hun,  25G,  holds  that  a  creditor  of  a  corporation  organized  under 
the  general  manufacturing  act  cannot  sue  a  stockholder  to  enforce  the  liability 
to  creditors,  imposed  by  said  act  until  after  judgment  against  the  corporation, 
and  execution  issued  thereon  is  returned  unsatisfied,  and  that  the  statute  does 
not  begin  to  run  in  favor  of  a  stockholder  until  after  the  return  of  the  execution 
against  the  corporation.  In  Brown  v.  Tyler,  8  Gray  (Mass.)  135,  the  plaintiff 
held  a  mortgage  upon  lands  of  the  defendant  to  secure  a  debt  due  from  the 
defendant  to  him,  and  at  the  defendant's  request  assigned  it  to  a  bank  to  secure 
a  loan  procured  from  it  by  the  defendant.  The  debt  to  the  bank  was  not  paid, 
and  it  foreclosed  the  mortgage  and  sold  the  lands  two  years  afterwards,  and 
applied  the  proceeds  on  the  defendant's  debt.     The   plaintiff  brought  an  action 

(-/)   In  order  that  the  statute  of  Iimi-  tained,    and   an    assessment   be  made, 

t  iti  >ns  should    run    in    any  case,   it  is  these   are    conditions    precedent    to    a 

necessarv  that  a  present  cause  of  ac-  right  of  action,  which  does  not  accrue 

tion    should    accrue     in    favor    of    the  until  they  are  fulfilled,  so  as  to  enable 

creditor,      Gilbert  v.  Taylor,  148  N.  Y.  the    statute     of    limitations     to     run. 

I  leru  '  .  under  a  capital-stock  note  Raegener  v.  Medicus,  66  N.  Y.  S.  460; 

oi  a  fire-insurance  company,  if  the  cor-  Peake  v.  Fuller,  123  Mich.  6S4. 
poration    losses    must    first    be    ascer- 


§   I  I9.J  WHEN   STATUTE    BEGINS   TO    RUN.  299 

commence  from  the  date  of  the  contract,  but  from  the  accom- 
plishment of  the  condition.  Thus,1  if  a  debt  is  contracted,  to  be 
paid  from  the  proceeds  of  certain  property  when  sold,  or  when 
certain  obligations  have  been  collected,  the  right  of  action  does 
not  accrue  until  such  property  is  sold  or  obligations  are  col- 
lected, as  the  case  may  be;  so  if  A.  agrees  with  B.2  that  if  he 
will  pay  a  certain  demand  which  A.  is  bound  to  pay,  he  will  pay 
him,  a  right  of  action   does    not   accrue   until    B.    has   paid  the 

against  the  defendant  for  money  paid  to  his  use,  and  the  defendant  set  up  the 
statute  of  limitations,  which  was  held  to  run  from  the  sale  of  the  land  and  the 
conversion  of  the  mortgage  debt  into  money,  and  not  from  the  time  of  fore- 
closure, and  that  the  debt  was  not  barred.  Where  the  holder  of  a  note  delivered 
it  to  his  creditor  as  collateral  security  for  a  mutual  account  current,  with  leave 
to  apply  thereto  any  sum  collected  on  the  note,  and  when  a  dividend  from  the 
estate  of  the  maker,  in  insolvency,  became  due,  the  debtor  collected  it,  as 
agent  of  the  creditor,  and  applied  it  on  the  account,  it  was  held  that  the  statute 
did  not  begin  to  run  on  the  account  until  the  date  of  such  last  item.  Whipple 
v.  Blackington,  97  Mass.  476.  Where  a  person  deposits  money  with  another, 
to  be  retained  by  him  until  demanded,  a  continuing  trust  is  created,  which  is 
not  ended  until  the  money  has  been  demanded  by  the  depositor.  Schroeder  v. 
Johns,  27  Cal.  274.  Upon  this  writing,  "  This  is  to  show  that  half  the  hire  of 
R.  hired  to  B.  is  J.'s,"  it  was  held  that  no  rightof  action  accrued  until  a  demand 
was  made,  and  that  the  statute  ran  from  the  date  of  demand.  Jones  v.  Woods, 
70  N.  C.  447. 

•Sanders  v.  Coward,  15  M.  &  W.  56.  In  Turkey  v.  Hawkins,  4  C.  B.  664, 
the  plaintiff's  declaration  was  framed  upon  a  bond  not  setting  forth  any  con- 
dition. The  defendant  set  up  the  statute,  and  upon  issue  joined  it  appeared 
that  the  bond  was  executed  more  than  twenty  years  before  action  brought,  but 
that  it  was  a  post  obit  bond  for  the  pavment  of  money  after  the  death  of  a  per- 
son named,  who  had  died  within  twenty  years  from  the  bringing  of  the  action; 
and  it  was  held  that,  as  the  cause  of  action  did  not  accrue  until  the  death  of  the 
person  named,  the  action  was  not  barred.  Blair  v.  Ormond,  20  L.  J.  Q.  B.  444; 
Amott  v.  Holden,  22  id.  19.  In  Lee  v.  Horton,  104  N.  Y.  538,  H.,  the  defend- 
ant's intestate,  executed  to  the  executors  of  S.  two  written  instruments,  by  each 
of  which  he  promised  to  pay  to  them  as  such  executors  at  his  death,  if  he  died 
without  heirs,  a  sum  specified,  which  the  instrument  described  as  a  fund  held 
by  the  executors  in  trust,  in  which  H.  had  a  life  interest,  with  remainder  over  to 
his  heirs.  He  died  leaving  an  heir.  In  an  action  to  recover  the  sum  specified, 
held  that,  as  the  condition  of  the  instrument,  if  carried  out,  would  cause  the 
fund  to  fall  into  the  estate  of  H.,  subject  to  administration,  it  would  result  in 
an  unlawful  disposition  of  the  money,  and  so  it  was  illegal  and  void:  that  the 
money  was  repayable  at  the  death  of  H.,  irrespective  of  the  question  whether 
he  left  heirs  or  not;  that  the  plaintiff  was  entitled  to  tecover,  and  that,  as  the 
cause  of  action  did  not  accrue  until  after  the  death  of  H.,  the  statute  did  not 
run  until  then,  and,  as  the  action  was  brought  within  the  time  limited  after 
such  death,  it  was  not  barred. 

3  Scott  v.  Osborne,  2  Munf.  (Va.)  413. 


300  STATUTES   OF   LIMITATION.  [CHAP.   X. 

demand.1  So  where  a  person  agrees  to  pay  for  property  pur- 
chased after  the  decease  of  a  certain  person,  a  right  of  action 
does  not  accrue  until  after  such  person's  decease  ;a  and  generally, 
■when  the  payment  of  a  claim  or  the  liability  of  a  party  is  made 
dependent  upon  the  performance  of  any  condition  precedent  or 
the  happening  of  any  contingency,  a  right  of  action  does  not 
accrue,  or  the  statute  begin  to  run,  until  the  performance  of  such 
condition  or  the  happening  of  such  contingency.3 

Where  A.  agreed  to  pay  B.  a  certain  sum  in  case  he  succeeded 
in  a  certain  action,  it  was  held  that  the  statute  did  not  begin  to 
run  until  the  successful  termination  of  the  action,  although  A. 
died  before  the  suit  was  terminated  and  an  administrator  had 
been  appointed.4  So  where  a  reward  is  offered  for  the  arrest 
and  conviction  of  a  criminal,  or  for  evidence  that  will  lead  to  his 
conviction,  the  statute  does  not  begn  to  run  until  a  conviction 
is  had.5 

1  Moore  v.  Caldwell,  8  Rich.  (S.  C.)  Eq.  22. 
'Thompson  v.  Gordon,  3  Strobh.  (S.  C.)  196. 

3  In  Morgan  v.  Plumb,  9  Wend.  (N.  Y.)  2S7,  where  a  note  was  made  payable 
when  a  cenain  mortgage  held  by  the  maker  should  be  collected,  it  was  held 
that,  while  the  payment  of  the  note  .was  contingent,  yet,  when  the  mortgagee 
entered  into  possession  under  foreclosure  proceedings,  the  mortgage  must  be 
treated  as  collected,  and  consequently  the  note  became  due  from  that  time. 
Van  Hook  v.  Whitlock,  3  Paige  (N.  Y.)  Ch.  409.  In  McMaster  v.  State  of  New 
York,  103  N.  Y.  547,  it  was  held  that  contracts  made  under  the  act  of  1870. 
organizing  "  the  Buffalo  State  Asylum,  for  the  insane  "  for  furnishing  materials 
for  the  construction  of  buildings,  were  not  abrogated  by  the  provisions  in  the 
appropriation  bills  of  1874  and  1875  in  reference  to  that  institution;  and  that 
where  a  claim  against  the  State  for  damages  for  breach  of  contract  for  furnish- 
ing building  materials  was  presented  more  than  six  years  after  the  passage  of 
the  act  of  1875,  but  within  six  years  after  breach  of  the  contracts  on  the  part  of 
the  officials  having  charge  of  the  work,  that  the  claim  was  not  barred. 

4  Burton  v.  Lockert,  9  Ark.  411.  In  Bowles  v.  Elmore,  7  Gratt.  (Va.)  385,  it 
was  agreed  between  the  maker  and  holder  of  a  note  that  the  maker  should  keep 
it  until  his  liability,  as  bail  for  the  holder  was  determined;  and  it  was  held  that 
the  statute  did  not  begin  to  run  until  the  maker's  liability,  as  bail,  had  ceased. 

6  Rver  t.  Stockwell,  14  Cal.  134.  In  Emmons  v.  Hayward,  6  Cush.  (Mass.)' 
501,  the  defendant,  on  March  25,  1835,  acknowledged  in  writing  the  receipt  by 
him  of  certain  property  from  the  plaintiffs,  who  were  assignees  for  the  benefit 
of  creditors  of  an  insolvent  debtor,  and  promised  to  pay  for  the  property  on. 
deman  I;  it  being  stipulated,  however,  that  demand  should  not  be  made  until 
ihe  assignees  had  made  up  their  account  previous  to  declaring  a  second  dividend 
under  the  assignment.  The  defendan  ,  in  1836,  brought  a  bill  in  equity  against 
the  pi  lin  tiffs  as  assignr-es  of  such  debtor,  which  was  pending  until  some  time 
in  March,  1 S 4 7 ,  and  during  its  pendency  prevented  the  plaintiffs  from  preparing 


§   120.]  WHEN   STATUTE   BEGINS   TO    RUN.  30I 

Where  a  person  consented  to  pay  the  expenses  of  a  suit,  in 
consideration  of  the  promise  of  another  person  to  pay  a  part  of 
them  "when  ascertained,"  it  was  held  that  the  statute  did  not 
begin  to  run  until  the  promisee  had  actually  paid  the  expenses.1 
So  where  an  attorney  agreed  to  prosecute  a  claim,  collect  it,  and 
take  his  pay  out  of  the  amount  collected,  it  was  held  that  the 
statute  did  not  begin  to  run  until  the  claim  was  collected.2  But, 
in  order  to  postpone  the  running  of  the  statute  upon  a  claim 
payable  upon  a  contingency,  the  contingency  must  be  such  as 
postpones  or  suspends  the  right  of  action,  or  the  statute  will  run 
from  the  date  of  the  contract.3  The  same  rule  prevails  where 
the  law  raises  or  implies  a  condition,  as  in  the  case  of  money 
deposited  in  a  bank;4  and  in  such  cases  the  statute  does  not 
begin  to  run  until  the  implied  condition  has  been  performed. 

SEC.  120.  Contracts  for  Services.  —  Under  an  ordinary  con- 
tract for  services  for  a  stated  period,  whether  long  or  short, 
no  time  for  payment  being  agreed  upon,  the  right  of  action 
accrues    immediately    upon    the    completion    of    the    term    of 

the  account  for  a  second  dividend.  The  plaintiffs  made  a  demand,  and  at  the 
same  time  presented  their  account  May  23,  184S.  In  an  action  upon  the  agree- 
ment the  defendant  set  up  the  statute  of  limitations,  and  claimed  that  the 
demand  was  not  made  upon  him  within  a  reasonable  time;  but  the  court  held 
that,  as  the  defendant  controlled  the  happening  event  upon  which  the  right  to 
make  a  demand  depended,  and  by  his  own  act  had  postponed  it,  he  was  estopped 
from  claiming  that  the  demand  was  unreasonably  delayed,  and  that  the  statute 
did  not  begin  to  run  until  the  demand  was  made.  In  Pennsylvania  it  is  held 
that  where  a  demand  is  necessary  to  complete  a  right  of  action,  it  must  be 
made  within  six  years  from  the  date  of  the  contract.  Morrison  v.  Mullin,  34 
Penn.  St.  12.  This  rule  appears  not  to  militate  against  the  Massachusetts  case, 
because  in  that  case  a  demand  depended  upon  a  future  event.  Nor  can  this 
rule  be  applied  where  the  demand  expressly  postponed  for  more  than  the  statu- 
tory period,  as,  to  a  note  payable  "  ten  years  after  demand,  demand  not  to  be 
made  for  ten  years,"  because  the  express  terms  of  the  contract  control. 

1  Darwin  v.  Smith,  35  Vt.  69.  See  also  Perkins  v.  Littlefield,  5  Allen  (Mass.) 
370,  where  a  judgment  was  confessed  for  a  sum  to  be  assessed  by  the  clerk,  it 
was  held  that  the  statute  did  not  begin  to  run  until  the  sum  was  so  ascertained. 
Wills  ?-.  Gibson,  7  Penn.  St.  154. 

8  Morgan  v.  Brown,  12  La.  Ann.  157.  A  note  made  payable  in  "  stonework," 
is  not  due  until  the  work  is  called  for.     Lincoln  v.  Purcell,  2  Head  (Tenn.)  143. 

3  Motley  v.  Montgomery,  2  Bailey  (S.  C.)  544.  Upon  a  loan  of  money  Jo  be 
repaid  on  demand,  the  statute  runs  from  the  date  of  the  loan.  Cook  v.  Cook, 
19  Tex.  434. 

4  Payne  v.  Gardiner,  29  N.  Y.  146. 


302  STATUTES   OF   LIMITATION.  [CHAP.   X. 

service.1  (a)  But  if  services  are  rendered  for  several  years  under  a 
general  agreement,  and  no  term  of  service  is  agreed  upon,  it  will 
be  treated  as  a  hiring  from  year  to  year,  and  the  wages  will  become 
due  and  the  statute  begin  to  run  as  to  each  year's  service  at  the 
end  of  each  year."  If  a  person  is  employed  by  the  day,  week, 
or  month,  and  is  to  be  paid  therefor  at  the  end  of  each  day, 
week,  or  month,  a  right  of  action  accrues,  and  consequently  the 
statute  begins  to  run  at  the  end  of  each  day,  week,  or  month,  as 
the  case  may  be,  and  will  bar  that  part  of  the  wages  which 
accrued    more    than   six   years   before    the   action   was   brought, 

1  Bill  v.  Lake,  Hetl.  138;  Wood's  Master  and  Servant,  §  83;  Littler  v.  Smiley, 
9  Ind.  116;  Zeigler  v.  Hunt,  1  McCord  (S.  C.)  577;  Rankin  v.  Woodworth,  3 
Penn,  4S;  Vanhorn  v.  Scott,  2S  Penn.  St.  316.  In  Brundage  v.  Port  Chester, 
102  N.  Y.  494,  the  plaintiff  made  a  demand  upon  the  defendant's  treasurer  for 
the  payment  of  an  indebtedness  due  from  the  defendant  to  him  for  work  and 
labor.  This  the  treasurer  refused  unless  the  plaintiff  would  consent  to  deduct 
from  the  sum  due  him  the  amount  of  an  illegal  assessment  upon  his  property, 
which  assessment  had  been  set  aside.  The  plaintiff  consented  to  accept  such 
balance,  which  was  paid  to  him.  In  an  action  brought  more  than  six  years 
thereafter,  in  form  to  recover  back  the  amount  so  deducted,  as  money  had  and 
received  by  the  plaintiff  for  the  defendant,  held,  that  the  plaintiff's  only  cause 
of  action  was  for  the  balance  of  the  original  indebtedness,  which  was  not  dis- 
charged by  the  action  of  the  treasurer,  but  was  barred  by  the  statute. 

2  Davis  v.  Gorton,  16  N.  Y.  255,  where  the  plaintiff,  having  rendered  services 
for  the  defendant  for  thirteen  years,  in  the  management  of  a  farm,  under  a 
general  agreement  in  which  the  price,  but  not  the  term  of  service,  was  fixed, 
the  court  held  that  the  hiring  was  a  general  hiring  from  year  to  year,  compen- 
sation becoming  due  at  the  end  of  each  year,  and  that  a  recovery  could  only  be 
had  for  wagest  hat  had  accrued  within  six  years  from  the  commencement  of 
the  action.  But  if  continuous  services  are  rendered  under  an  entire  contract, 
as  for  two  or  five  year?,  and  no  time  for  payment  is  fixed,  the  statute  does  not 
begin  to  run  until  the  termination  of  the  relation  between  the  parties.  Schoch 
v.  Garrett,  69  Penn.  St.  144.  In  Hall  v.  Wood,  g  Gray  (Mass.)  60,  where,  in  an 
action  for  work  and  labor,  the  bill  of  particulars  contained  some  items  which 
bore  date  more  than  six  years,  before  the  commencement  of  the  action,  the  court 
held  that  an  action  might  be  maintained  for  the  full  amount,  notwithstanding 
the  statute,  if  the  whole  work  was  done  under  an  entire  contract.     In  re  Gard- 

{a)  When  waives  are  due  at  fixed  a  trust,  the  right  to  compensation  ac- 
t  m  5,  the  statute  runs  from  the  date  crues  when  the  combination  is  finally 
when  due.  F.nnis  v.  Pullman  Palace  consolidated,  and  the  statute  of  limita- 
Car  Co.,  165  111.  161,  174.  But  when  tions  runs  from  that  event.  Hentz  v. 
partial  payments  are  made  each  month  Havemever,  68  N.  Y.  S.  440.  See  Bart- 
on accounl  of  continuous  services,  lett  v.  Mystic  River  Corp  151  Mass. 
there  is  a  mutual  account  which  does  433,436.  Upon  a  promise  to  pay  for 
away  with  the  statute  of  limitations,  services  by  will,  the  cause  of  action 
Hay  v,  Peterson,  6  Wyo,  419.  Upon  a  accrues  at  the  employer's  death. 
contract  for  services  and  compensation,  Stone  v.  Todd,  49  N.  J.  L.  274;  Cann 
in  ■  onsolidating  rival  enterprises  into  v.  Cann,  45  VV.  Va.  563. 


§  120.]  WHEN   STATUTE   BEGINS   TO    RUN.  303 

although  the  service  continued  for  several  years.1  If  under  a  con- 
tract to  build  a  house,  vessel,  or  in  fact  to  do  any  species  of 
work,  extra  services  arc  rendered  or  extra  expense  is  incurred  for 
which  the  party  is  entitled  to  have  extra  compensation,  and  no 
time  of  payment  for  such  extra  work,  etc.,  is  agreed  upon,  the 
statute  commences  to  run  against  the  claim  for  such  extra  work, 
etc.,  from  the  time  when  the  work  is  completed.2  If  services  are 
rendered  on  a  promise  that  certain  property,  or  a  certain  amount 
of  property,  shall  be  devised  to  the  person  rendering  them,  by 
the  will  of  the  person  for  whom  they  are  rendered,  a  right  of 
action  for  such  services  does  not  accrue  until  after  the  death  of 
the  promisor;3  and  it  has  been  held  that  even  though  the  serv- 
ices contracted  for  are  not  completed,  because  the  person  is  pre- 
vented by  the  promisor,  the  rule  is  the  same,  and  the  right  of 
action  does  not  accrue  or  the  statute  begin  to  run  until  the  death 
of  the  promisor;  but  if  the  agreement  as  to  the  devise  is  not 
performed,  a  recovery  may  then  be  had  from  the  estate  of  the 
deceased  for  the  value  of  the  services  rendered.4  But  this  is 
hardly  the  true  rule,  especially  where  the  person  employed  under 
such  a  contract  is  wrongfully  discharged  from  the  service;  and  in 
New  York,  it  has  been  held  that  under  such  circumstances  the 
servant's  right  of  action  upon  quantum  meruit  accrues  immedi- 
ately upon  the  discharge,  and  is  barred  in  six  years  from  that 
date,  and  this  would  seem  to  us  to  be  the  true  doctrine.5  But  if 
the  contract   is  entire,    and   the   employer   has  not   in  fact  dis- 

ner,  103  N.  Y.  533,  it  was  held  that  where  one  person  enters  into  employment 
without  any  express  agreement  as  to  the  time  of  service  or  measure  of  compen- 
sation, in  the  absence  of  any  proof  of  usage,  it  is  to  be  considered  as  a  general 
hiring;  but  no  agreement  can  be  implied  that  compensation  shall  be  postponed 
until  the  termination  of  the  employment;  and  where  the  emplovment  has  con- 
tinued for  a  long  period  of  time,  and  there  are  no  mutual  accounts  between  the 
parties,  the  statute  is  a  bar  to  a  claim  for  more  than  six  years  of  services  in  such 
employment,  unless  it  appears  that  payments  have  been  made  to  apply  thereon 
within  the  six  years,  in  which  case  a  recovery  is  proper  for  a  period  beginning 
six  years  prior  to  the  first  of  said  payments. 

1  Butler  v,  Kirby,  53  Wis.  18S;  Turner  v.  Martin,  4  Robt.  (N.  Y.)  661;  Mims  v. 
Sturtevant,  iS  Ala.  359;   Phillips  v.  Bradley,  11  Jur.  264. 

2  Peck  v.  New  York  Steamship  Co.,  5   Bosw.  (N.  Y.)  226. 

3  Bash  v.  Bash,  9  Penn.  St.  260;  Price  v.  Price,  Cheves  (S.  C.)  Eq.  167;  Jilson 
v.  Gilbert,  26  Wis.  637;  Titman  v.  Titman,  64  Penn.  St.  480;  Riddle  v.  Backus, 
38  Iowa,  81. 

*Quackenbush  v.  Ehle,  5  Barb.  (N.  Y.)  469. 
6  Bonesteel  v.  Van  Etten,  20  Hun  (N.  Y.)  468. 


304  STATUTES   OF    LIMITATION.  [CHAP.   X. 

charged  the  servant,  but  simply  neglects  to  employ  him,  the 
remedy  does  not  become  complete  until  the  contract  is  ended 
by  the  death  of  the  employer. 

Where  a  person  who  contracts  to  render  services  under  an 
entire  contract  dies  before  the  contract  is  completed,  by  the  death 
of  the  servant  the  contract  is  ended ;  but  a  right  of  action  does 
not  accrue  so  as  to  bar  an  action  for  the  wages,  until  an  adminis- 
trator is  appointed  upon  his  estate.1  But  where  a  person 
employed  under  an  entire  contract  is  discharged  before  its  com- 
pletion, his  right  of  action  for  wages  already  earned  accrues  at 
once;2  but  his  claim  for  damages  does  not  accrue  so  as  to  become 
complete,  and  consequently  so  that  the  statute  will  run  against 
it,  until  the  term  for  which  he  was  originally  employed  was 
ended ;  for  while  he  may  bring  an  action  at  once  for  such  dam- 
ages as  he  has  sustained,  yet  he  thereby  waives  all  future  dam- 
ages, and  he  has  a  right  to  wait  until  the  period  is  ended,  and 
sue  for  the  damages  he  has  actually  sustained  from  the  breach 
of  the  contract.3  Where  a  contract  to  do  a  certain  thing  neces- 
sarily contemplates  a  reasonable  time  in  which  to  do  it,  the  stat- 
ute does  not  begin  to  run  until  a  reasonable  time  has  elapsed ; 
and  as  to  what  is  a  reasonable  time  is  a  question  of  fact  for  the 
jury.4  Where  there  is  a  contract  for  continuous  service,  and  no 
time  of  payment  is  specified,  the  wages  do  not  become  due  so 
that  an  action  can  be  brought  therefor  until  the  service  is  ended, 
and  the  statute  only  begins  to  run  from  that  time.5 

SEC.  121.  Rule  as  to  Services  of  Attorneys. — This  rule,  as  to 
entire  contracts  for  services,  is  well  illustrated  in  the  case  of 
attorneys.  It  is  held  that  the  statute  does  not  run  against  an 
attorney's  claim  for  professional  services  so  long  as  anything 
remains  to  be  done  by  him  before  final  judgment  in  a  case  that 

1  Carney  v.  Havens,  23  Kan.  82. 

5  Konesteel  v.  Van  Etten,  supra. 

3  See  Wood's  Master  and  Servant,  §  125,  p.  237,  and  authorities  cited. 

*  Kvans  v.  Hardeman,  15  Tex.  480. 

1  Jones  v.  Lewis,  11  Tex.  359;  Hall  v.  Wood,  9  Gray  (Mass.)  60.  In  Littler  v. 
Smiley.  9  Jnd.  116,  it  was  held  that  there  was  no  error  in  this  instruction:  "  If 
the  plaintiff  performed  labor  for  the  plaintiff's  intestate,  under  an  agreement  to 
be  paid  therefor,  without  specifying  at  what  time  such  payment  should  be  made, 
or  how  long  such  labor  should  be  performed,  then  the  statute  would  not  com- 
•  running  until  such  labor  was  ended."  See  Schoonover  v.  Vachon,  121 
[ad.  3. 


f§   121.]  WHEN   STATUTE    BEGINS   TO    RUN.  305 

he  has  in  hand  for  his  client,  or  so  long  as  the  relation  of 
attorney  and  client  exists  in  a  case.1^)  In  Pennsylvania,  it  has 
been  held  that,  where  an  attorney  is  employed  to  collect  a  debt, 
the  statute  does  not  run  against  his  claim  for  services  so  long  as 
the  debt  remains  unpaid.2  In  New  York,  it  is  held  that  the  stat- 
ute begins  to  run  upon  his  claim  for  services  and  disbursements 
whenever  his  services  are  so  brought  to  an  end  that  he  can  main- 
tain an  action  for  them.3  This  point  is  held  to  be  reached  n  ler 
a  general  employment  when  the  suit  is  terminated  by  the  entry 
of  a  final  judgment4;  and  this  is  so  although  there  may  be 
other  charges  incidental  to  the  matter,  incurred  afterwards.6 

It  must  be  understood,  however,  that  this  rule  relates  to  an 
attorney's  bills  under  a  general  retainer,  so  that  his  services  are 
continuous,  and  has  no  application  where  he  is  specially  employed, 

1  Walker  v.  Goodrich,  16  111.  341;  Fenno  v.  English,  22  Ark.  170;  Bathgate  v. 
Haskin,  59  N.  Y.  533;  Davis  v.  Smith,  48  Vt.  52  In  Noble  v.  Bellows,  53  Vt. 
185,  it  was  held  that  an  attorney's  employment  in  a  suit  is  continuous;  and 
that  limitation  does  not  run  on  his  account  until  the  case  is  ended,  or  he  is  other- 
wise discharged.  See  Langdon  v.  Castleton,  4S  Vt.  52;  Mygatt  v.  Wilcox.  1 
Lans.  (N.  Y.)  55,  and  45  N.  Y.  306;  Whitehead  v.  Lord,  7  Exch.  091;  Hall  v. 
Wood,  9  Gray  (Mass.)  60. 

3  Foster  v.  Jack,  4  Watts  (Penn.)  334.  But  see  Lichty  v.  Hugus,  55  Penn.  St. 
434;   Hale  v.  Ard,  48  id.  22. 

3  Adams  v.  Fort  Plain  Bank,  36  N.  Y.  255;   Mygatt  v.  Wilcox,  45  id.  306. 

4  Eliot  v.  Lawton,  7  Allen  (Mass.)  274;  Walker  v.  Goodrich,  16  111.  341;  Fenno 
v.  English,  22  Ark.  170. 

5  In  Rothery  v.  Munnings,  1  B.  &  Ad.  15,  the  plaintiff,  a  proctor,  sued  the 
defendant  for  the  amount  of  his  bill,  which  was  chiefly  for  work  done  in  prose- 
cuting an  appeal  to  judgment.  After  the  judgment,  a  communication  had  been 
made  by  the  adverse  party  to  the  plaintiff  as  proctor,  and  attended  to  by  him, 
respecting  the  costs,  and  an  item  in  respect  of  this  transaction  was  added  to  the 
plaintiff's  bill.  No  previous  part  of  the  demand  had  accrued  within  six  years. 
It  was  held  that  the  latter  item  did  not  take  the  rest  out  of  the  statute  of  limi- 
tations. "  When,"  said  Lord  Tenterden,  C.  J.,  "  the  suit  was  terminated  by  a 
sentence,  there  is  no  doubt  that  the  proctor  had  a  right  to  call  for  the  amount 
of  his  bill.  His  duty  was  then  concluded,  unless  something  should  occur  to 
require  his  further  interference.  A  letter  is,  indeed,  sent  to  him  in  October 
(the  judgment  was  given  in  July)  on  the  subject  of  the  costs,  and  a  further 
charge  arises  for  the  perusal  and  consequent  attendance;  but  this  was  mere 
accident." 

(a)  The  doctrine  of  Eliot  v.  Lawton,  termination,  under  a  general  employ- 

7  Allen  (Mass.)  274,  that  the  statute  of  ment,  until  the  entry  of  final  judgment 

limitations    does    not     begin    to    run  therein,  was  applied  in  Taft  v.  Shaw, 

against  any  part  of  the  claim  of  an  at-  159  Mass.  592.     See  Ennis  v.  Pullman 

torney  at  law  for  services  rendered  and  Palace  Car  Co.,  165  III.  161. 
■money  paid  in  conducting  a  suit  to  its 
[stats,  of  lim.  —  20] 


J 


06  STATUTES   OF    LIMITATION.  [CHAP.   X. 


as  to  make  a  brief,  or  argue  a  cause,  or  file  a  motion,  or  perform 
any  other  special  service  that  does  not  involve  or  contemplate 
any  further  connection  with  the  case.  In  the  latter  instance  his 
right  of  action  is  complete  as  soon  as  the  service  is  performed. 
The  law  fixes  an  attorney's  responsibility  to  act  for  his  client 
until  the  business  is  disposed  of.  But  the  rule  is  subject  to  the 
exception  that  his  relation  with  the  cause  may  be  terminated  by 
notice  given  by  him  to  his  client  that  he  shall  cease  to  act  further 
in  that  capacity,  or  by  a  notice  to  him  from  his  client  that  his 
services  are  no  longer  required,  in  which  case  his  right  of  action 
accrues  from  the  time  his  connection  with  the  case  ceases ; !  so 
also  by  the  death  of  his  client.2  Another  matter  must  be  remem- 
bered, and  that  is,  that  where  there  is  no  special  agreement  in 
relation  thereto,  if  an  attorney  is  employed  in  several  causes,  his 
right  of  action  accrues  with  the  entry  of  final  judgment  in  each 
of  them,  and  the  statute  begins  to  run  from  that  time,  and  is  not 
suspended  by  the  circumstance  that  other  actions  for  the  same 
client  in  which  he  is  employed  are  still  pending; 3  and  this  is  also 
the  case  as  to  special  services  rendered  by  him  not  connected 
with  any  suit,  as  for  advice,  drawing  deeds,  contracts,  etc.,  —  in 
such  cases  the  right  of  action  accrues  at  once,  unless  a  special 
term  of  credit  is  agreed  upon,  and  the  statute  begins  to  run  from 
the  time  when   they   were   rendered.4      There   are    instances    of 

1  Boardman,  J.,  in  Mygatt  v.  Wilcox,  1  Lans.  (N.  Y.)  58,  45  N.  Y.  306;  Phelps 
v.  Patterson,  25  Ark.  185. 

5  Harris  v.  Osborn,  2  C.  &  M.  629;  Whitehead  v.  Lord,  7  Exch.  691;  Martin- 
dale  v.  Faulkner,  2  C.  B.  706.  In  Harris  v.  Osborn,  2  C.  &  M.  629,  Lyndhurst, 
C.  B.,  in  passing  upon  this  question,  said:  "  I  consider  that  when  an  attorney 
is  retained  to  prosecute  or  defend  a  cause,  he  enters  into  a  special  contract  to 
carry  it  on  to  its  termination.  I  do  not  mean  to  say  that  under  no  circumstances 
can  he  put  an  end  to  this  contract;  but  it  cannot  be  put  an  end  to  without 
notice."  This  rule  was  recognized  in  Nicholls  v.  Wilson,  11  M.  &  W.  106,  and 
still  later  in  Phillips  v.  Broadley,  9  Q.  B.  745,  although  in  the  latter  case  it  was 
held  to  apply  only  to  services  and  charges  in  the  particular  suit,  and  not  to 
affect  general  charges. 

3  Adams  v.  Fort  Plain  Bank,  36  N.  Y.  255. 

4  Id.  In  Hale  v.  Ard,  48  Penn.  St.  22,  it  was  held  that  the  statute  runs 
against  a  claim  for  professional  services  as  soon  as  they  are  finished,  and  the 
relation  of  continuing  attorney  in  a  litigated  case  will  not  prevent  the  claim  for 
services  generally  from  being  barred  by  the  statute,  although  it  may  for  services 
rendered  during  the  progress  of  that  particular  case,  and  in  that  case.  In  an 
English  case,  where  an  attorney  was  employed  to  raise  money  on  a  mortgage, 
and    by  direction  of  his  employer  applied   to  several   persons  for  that  purpose,. 


§  122.]  WHEN   STATUTE   BEGINS   TO    RUN.  307 

special  contracts  with  attorneys,  where  their  fee  is  made  con- 
tingent upon  the  collection  of  a  demand ;  and  in  such  cases,  of 
course,  the  statute  does  not  attach  upon  the  entry  of  judgment, 
but  only  when  the  judgment  is  collected.1  In  such  case  his  fee, 
being  exigible  until  the  money  is  collected,  does  not  begin  to  run 
from  the  date  of  the  judgment,2  but  from  the  time  when  the 
money  is  collected ;  and,  if  the  money  is  collected  at  different 
periods,  perhaps  the  statute  attaches  to  each  sum  collected,  at 
the  time  of  its  collection.  In  Pennsylvania,  it  is  held  that  the 
statute  begins  to  run  for  professional  services  as  soon  as  they  are 
ended.3  The  theory  of  these  cases  is  that  the  services  are  ren- 
dered upon  an  entire  contract,  so  that  a  right  of  action  does  not 
accrue  until  the  entry  of  final  judgment;4  and  if  a  special  con- 
tract is  shown  to  have  existed  as  to  compensation,  and  the  time 
and  mode  thereof,  of  course  that  will  control  as  to  the  time  when 
the  statute  attaches. 

SEC.  122.  When  Attorney  is  charged  with  Misfeasance  or  Mal- 
feasance. —  An  action  lies  against  an  attorney  for  negligence  in 
the  collection  of  claims  left  with  him  for  that  purpose,  from  the 
time  the  client  first  had  or  ought  to  have  had,  by  the  exercise  of 
proper  diligence,  knowledge  of  the  fact;5  and  he  is  treated  as 
having  notice  of  the  fact  after  the  lapse  of  a  reasonable  time,  as 
it  is  the  duty  of  a  client,  and  the  law  presumes  that  he  will  do  so, 
to  look  after  his  own  interests ; 6  and  the  lapse  of  a  reasonable 
time,  without  bringing  suit  therefor,  fixes  his  liability,  and  the 

and  communicated  from  time  to  time  with  the  defendant,  in  a  suit  for  services 
the  statute  of  limitations  was  pleaded,  and  Lord  Denman,  C.  J.,  said:  "As  to 
the  first  point,  it  appeared  by  the  plaintiff's  bill  that  certain  items  relating  to  a 
transfer  of  a  mortgage  occurred  more  than  six  years  ago,  and  other  items 
relating  to  the  same  matter  were  within  six  years;  and  it  was  contended  that 
the  whole  must  be  taken  to  be  done  under  one  contract,  and  that  there  was  no 
cause  of  action  in  respect  to  any  until  all  were  complete.  There  was  no  evi- 
dence except  the  bill  itself,  and  the  language  of  that  leads  to  a  different  con- 
struction; therefore  the  items  beyond  the  six  years  should  be  disallowed." 
Phillips  v.  Bradley,  11  Jur.  264. 

1  Foster  v.  Jack,  4  Watts  (Penn.)  334. 

3  Morgan  v.  Brown,  12  La.  Ann.  159. 

*  Hale  v.  Ard,  48  Penn.  St.  22;  Lichty  v.  Hugus,  55  id.  434. 

4  Hall  v.  Wood,  q  Gray  (Mass.)  60;  Eliot  v.  Lawton,  7  Allen  (Mass.)  274. 

6  Derrickson  v.  Cady,  7  Penn.   St.  27.     In  White  v.  Reagan,  32  Ark.  281,  it 
is  said  to  begin  to  run  at  once. 

•  Rhines  v.  Evans,  66  Penn.  St.  192;  Stephens  v.  Downey,  53  id.  424. 


308  statutes  of  limitation.  [chap.  X. 

statute  begins  to  run  from  that  time.1  Of  course,  the  question 
as  to  what  is  a  reasonable  time,  in  this  as  well  as  in  all  other  cases, 
is  one  of  fact,  to  be  determined  in  view  of  the  circumstances  of 
each  case.  This  rule  does  not  override  the  rule  that  must  at  all 
times  be  borne  in  mind  in  reference  to  torts — -that  time  runs, 
and  a  right  of  action  accrues  from  the  wrongdoing,  and  not  from 
the  time  of  damage;2  because  the  attorney  is  entitled  to  a 
reasonable  time  in  which  to  bring  action,  and  a  right  of  action 
does  not  accrue  against  him,  nor  is  the  wrong  complete  until  the 
lapse  of  such  period.  Then  the  tort  becomes  complete.  Where 
an  attorney  is  sued  for  malpractice,  the  cause  of  action  arises 
from  the  time  when  such  malpractice  occurred,  and  that  without 
any  reference  to  the  circumstance  whether  the  client  then  knew 
the  fact  or  not.3 

As  to  the  question  when  a  right  of  action  accrues  against  an 
attorney  for  money  collected  by  him  for,  and  not  paid  over  to, 
his  client,  some  difficulty  is  experienced  in  view  of  the  fact  that 
an  action  cannot  be  brought  until  a  demand  is  made  upon  him 
for  the  money.  In  Pennsylvania,  it  is  held  that,  in  the  absence 
of  fraud  on  the  attorney's  part  in  concealing  the  facts,  the  stat- 
ute begins  to  run  from  the  time  of  the  receipt  of  the  money  with- 
out regard  to  the  question  whether  the  client  had  notice  of  the 
fact  or  not.4     Such  also  appears   to   be  the  rule   in    New  York,5 

1  Mardis  v.  Shackleford,  4  Ala.  493. 

2Battley  v.  Faulkner,  3  B.  &  Aid.  288. 

3  In  VVhiiehead  v.  Howard,  3  B.  &  Aid.  288,  where  an  attorney  retained  by 
the  plaintiff  in  1844  represented  to  him  that  certain  proposed  securities  for  an 
advance  of  £3,000  were  sufficient,  when  in  fact  they  were  worthless,  but  the 
fact  of  their  worlhlessness  was  not  discovered  until  some  time  in  1850,  after 
more  than  six  years  had  elapsed  from  the  making  of  the  security,  it  was  held 
that  the  statute  of  limitations  barred  the  claim,  although  interest  upon  the 
advance  had  in  the  meantime  been  duly  paid.  Bayley,  J.,  in  delivering  the 
judgment  of  the  court,  said:  "  This  is  a  case  of  no  difficulty  whatever.  It 
appears  to  me  that  the  misconduct  of  the  defendant  is  the  gist  of  the  action. 
If  the  allegation  of  special  damage  had  been  wholly  omitted,  the  plaintiff  would 
have  been  entitled  to  nominal  damages."  And  see  Smith  v.  Fox,  6  Hare,  386. 
In  Crawford  v.  Gaulden,  33  Ga.  173,  the  court  held  that,  in  an  action  against  an 
agent  for  negligence  or  unskilfulness,  the  st  itute  begins  to  run  from  the  time 
the  negligent  or  unskilful  act  was  committed,  and  that  the  circumstance  that 
the  plaintiff  was  ignorant  of  the  fact  cannot  operate  as  a  suspension  of  the  statute. 

4Campb'l!  ?>.  Hoggs,  48  Penn.  St.  524:  Glenn  v.  Cuttle,  2  Grant's  Cas.  (Penn.) 
273;   Krause  v.  Dorrance,  10  Penn.  St.  462. 

'Stafford  r.  Richardson,  15  Wend.  (N.  Y.)  302. 


§   122.]  WHEN    STATUTE    BEGINS    TO    RUN.  309 

Virginia,1  and  South  Carolina;2  and  this  rule  was  held  in  some 
of  the  cases  cited,  although  a  demand  for  the  money  was  made 
within  six  years,  the  court  holding  that  the  rule  as  to  demand 
was  for  the  benefit  of  the  attorney,  and  did  not  affect  the  ques- 
tion as  to  the  actual  accrual  of  the  action.  But  in  all  these  cases 
a  long  period  of  time  elapsed  between  the  receipt  of  the  money 
by  the  attorney  and  the  bringing  of  the  action  for  its  recovery ; 
the  client  had  been  guilty  of  laches  in  not  making  inquiry  as  to 
the  state  of  the  claim,  and  the  attorney  had  been  derelict  in  duty 
in  not  having  apprised  him  of  the  fact  that  the  money  had  been 
collected.  Where  the  attorney  notifies  the  client  of  the  collec- 
tion of  the  money,  it  has  been  held  that  the  statute  does  not 
begin  to  run  in  his  favor  until  after  the  lapse  of  a  reasonable  time 
from  the  receipt  of  such  notice  by  the  client  in  which  to  make 
demand,3  yet,  if  the  rule  first  stated  is  subject  to  any  modifica- 
tion, it  is  much  better  expressed  in  a  Pennsylvania  case,4  where 
it  was  held  that  the  statute  under  such  circumstances  begins  to 
run  from  the  time  when  the  client  has  notice  of  the  fact.  In 
Arkansas,  it  has  been  held  that  the  statute  begins  to  run,  where 
no  notice  is  given  by  the  attorney  of  the  collection,  from  the 
time  when  he  ought  to  have  given  such  notice;5  in  other  words, 
after  the  lapse  of  a  reasonable  time  after  the  collection  is  made. 
In  this  case  the  court  say  that  "where  an  attorney  collects 
money  on  account,  and  notifies  his  client  thereof  within  a  reason- 
able time,  he  will  not  be  liable  to  an  action  for  the  money  with- 
out special  demand,"  but   that  the  rule   is  otherwise  where  no 

1  Kinney  v.  McClure,  1  Rand.  (Va.)  2S4. 

'  Houseal  v.  Gibbes,  1  Bailey  Eq.  (S.  C.)  482. 

3  Lyle  v.  Murray,  4  Sandf.  (N.  Y.)  590. 

4  McDowell  v.  Potter,  8  Penn.  St.  1S9.  Such,  also,  is  the  rule  stated  in 
McCoon  v.  Galbraith,  29  id.  293,  as  to  partial  collections  upon  a  claim. 

6  Denton  v.  Embury,  10  Ark.  228.  Later  this  court  held  that  an  action  cannot 
be  maintained  against  an  attorney  or  an  agent  for  money  collected  by  him  as 
such  until  after  demand  and  refusal  to  pay  it  over.  "  It  is  the  duty,"  say  the 
court,  "  of  an  agent  or  attorney,  who  has  collected  money  as  such,  to  give 
notice  of  the  fact  to  his  client  or  principal,  within  a  reasonable  time.  Upon 
receiving  such  notice,  the  client  or  principal  is  bound  to  make  demand  within  a 
reasonable  time;  and  if  he  omits  to  do  so,  the  statute  of  limitations  begins  to 
run.  If  the  attorney  omits  to  notify  his  client,  the  latter  may  maintain  a  suit 
without  previous  demand.  The  statute  will  not  commence  to  run  until  the 
client  has  notice  by  some  means,  unless  the  attorney  can  show  that  the  client 
could,  by  ordinary  diligence,  have  known  of  the  collection."  Jett  v.  Hemp- 
stead, 25  Ark.  462. 


3IO  STATUTES   OF   LIMITATION.  [CHAP.   X. 

notice  is  given.1  If  an  attorney  has  fraudulently  concealed  the 
fact,  as  if,  upon  being  inquired  of  by  his  client,  he  informs  him 
that  the  money  has  not  been  collected,  the  statute  does  not 
begin  to  run  until  the  discovery  of  the  fraud  ; 2  but  the  fact  that 
he  neglects  to  notify  the  client  of  the  collection,  or  that  he  appro- 
priates the  money  to  his  own  use,  does  not  of  itself  amount  to 
such  fraudulent  concealment.3  Where  an  attorney  collects  a 
claim  in  instalments,  the  statute  does  not  begin  to  run  until  the 
entire  claim  is  collected,  or  until  the  matter  is  terminated  by 
complete  success  or  failure,  unless  he  notifies  the  client  of  such 
collections,  in  which  case  the  statute  begins  to  run  from  the  time 
of  notice.4  If  an  attorney  fraudulently  conceals  the  fact  that  a 
demand  has  been  collected  by  him,  the  statute  does  not  begin  to 
run  against  his  client  until  the  discovery  of  the  fraud  by  him;5 
and  if  he  sends  the  claim  to  another  State  for  collection,  and 
upon  being  inquired  of  by  his  client  informs  him  that  it  is  not 
collectible,  when  in  fact  it  has  been  collected,  the  statute  does 
not  run  against  his  client  until  the  discovery  of  the  fraud,  even 
though  the  answer  was  given  by  him  in  good  faith.6 

1  In  Hickok  v.  Hickok,  13  Barb.  (N.  Y.)  632,  il  was  held  that  the  statute  begins 
to  run  in  favor  of  an  attorney  or  other  person  who  collects  money  for  another, 
and  nsgleccs  to  pay  it  over,  after  the  lapse  of  a  reasonable  time  to  do  so,  with- 
out a  previous  demand. 

*  Glenn  v.  Cuttle,  supra. 

3  Fleming  v.  Culbert,  46  Penn.  St.  498. 

4  McCoon  v.  Galbraith,  29  Penn.  St.  293. 

5  Wickersham  v.  Lee,  83  Penn.  St.  416. 

*  Morgan  v.  Tener,  83  Penn.  St.  305.     See  Myers  v.  Cronk,  113  N.  Y.  60S. 


;§  I23-]  AGENTS,  FACTORS,  ETC.  311 


CHAPTER  XI. 
Agents,  Factors,  &c. 

Sec.   123.  Agents,   Factors,  &c. 

SEC.  123.  Agents,  Factors,  &c.  —  Where  goods  are  consigned 
to  an  agent  for  sale,  on  commission  or  otherwise,  in  the  absence 
of  any  special  contract  relative  thereto  the  law  implies  a  contract 
on  his  part  to  account  for  such  goods  as  are  sold,  pay  over  the 
proceeds  to  his  principal,  and  return  such  as  are  unsold,  on 
demand  ;  and  an  action  will  not  lie  against  him,  as  a  general  rule, 
and  the  statute  does  not  consequently  begin  to  run  against  the 
principal,  until  an  account  has  been  rendered  or  a  demand  has 
been  made.1^)  In  Pennsylvania,2  where  the  plaintiffs  furnished 
to  the  defendant,  in  1856,  an  invoice  of  medicines  to  be  sold  on 
commission,  and  accounted  for  at  prices  fixed  by  a  schedule, 
and  the  defendant  never  rendered  any  account  nor  returned  the 
goods,  and  in  1865  the  plaintiff  brought  an  action  therefor,  and 
the  defendant  set  up  the  statute  to  defeat  the  claim,  the  court 
held  that  the  statute   did   not   apply,  as   it  did  not  run  until  an 

1  Clark  v.  Moody,  17  Mass.  144;  Topham  v.  Braddick,  1  Taunt.  572;  Collins 
v.  Benning,  12  Mod.  444;  Baird  v.  Walker,  12  Barb.  (N.  Y.)  298;  Holden  v. 
Crafts,  4  E.  D.  Smith  (N.  Y.)4go;  Sawyer  v.  Tappan,  14  N.  H.  352;  Hutchinson 
v.  Gilman,  g  id.  359;  Taylor  v.  Bates,  5  Cow.  (N.  Y.)  379;  Paschall  v.  Hall,  5 
Jones  (N.  C.)  Eq.  108;  Hays  v.  Stone,  7  Hill  (N.  Y.)  128;  Krause  v.  Dorrance, 
10  Penn.  St.  462.  Where  money  is  deposiled  with  a  person  for  a  specific  pur- 
pose as,  to  be  invested  in  certain  propeity  or  loaned  upon  interest,  although  no 
time  is  specified  within  which  he  shall  account,  he  is  only  required  to  account 
on  demand,  and  the  siatute  does  not  begin  to  run  against  the  principal  until  a 
demand  has  been  made.  Joseph  v.  Baker,  16  Cal.  173.  An  important  distinc- 
tion exists  between  such  an  agent  and  one  merely  intrusted  with  the  collection 
of  money,  which  arises  out  of  the  contract  necessarily  implied  by  law.  In  the 
former  case,  the  only  contract  implied  is,  that  he  will  invest  or  loan  the  money 
judiciously,  and  account  to  the  principal  therefor  on  demand;  while  in  the 
latter  case  the  contract  implied  is,  that  he  will  collect  the  money  and  pay  it  over 
to  his  principal  as  collected.  Hart's  Appeal,  32  Conn.  520,  showing  that,  if  the 
rule  operates  harshly,  the  fault  is  with  the  principal  who  leaves  important 
interests  controlled  by  an  implied,  instead  of  an  express,  contiact. 

5  Jayne  v.  Mickey,  55  Penn.  St.  260. 

(a)  Teasley    v.    Bradley  (no  Ga.),  78  Am   St.  Rep.  113,  and  n. 


312  STATUTES   OF    LIMITATION.  [(HAT.   XI. 

account  had  been  rendered  or  a  demand  made.  The  principle 
is  that,  inasmuch  as  no  time  is  agreed  upon  within  which  an 
account  is  to  be  rendered,  or  payment  to  be  made,  it  is  pre- 
sumed that  such  account  was  to  be  rendered  and  payment  made 
upon  demand  by  the  principal,  and  that  the  agent  stands  to  the 
principal  in  the  relation  of  a  trustee,  rather  than  in  that  of  a 
debtor,  until  by  a  demand  upon  him  the  principal  has  put  an  end 
to  the  trust.  This  presumption  does  not  arise  where  a  special 
contract  exists,  providing  the  period  or  periods  within  which  an 
account  shall  be  rendered  or  payments  made  is  fixed  upon,  and 
in  that  case  a  right  of  action,  the  statute  will  begin  to  run  from 
such  periods. 

In  the  case  of  an  open  agency,  it  seems  that  a  demand  may  be 
presumed  after  the  lapse  of  a  reasonable  time.  But  in  all  cases 
of  an  open,  continuing  agency,  a  demand  must  either  be  proved 
or  presumed.1  The  presumption  is  held  in  some  of  the  States  to 
arise  so  as  to  dispense  with  proof  of  a  demand  in  the  case  of  a 
collecting  agent  who  fails  to  notify  his  principal  after  the  lapse 
of  a  reasonable  time  after  the  collection  is  made;2  while  in 
others,  and  by  far  the  larger  number,  it  is  held  that  the  cause  of 
action  arises  from  the  time  when  a  demand  is  made  upon  the 
agent,    and    not    from   the   time  when   the   money  is  received  by 

1  Topham  v.  Braddick,  i  Taunt.  572;  Johnston  v.  Humphrey,  14  S.  &  R. 
(Penn.)  394;  Armstrong  v.  Smith,  2  id.  2*1;  Holden  v.  Crafts,  4  E.  D.  Smith 
(N.  Y.)  496;  Ferris  v.  Paris,  10  Johns.  (N.  Y.)  285;  Sawyer  v.  Tappan,  14  N.  H. 
352;  Buchanan  v.  Parker,  5  Ited.  (N.  C.)  L.  597;  Staples  v.  Staples,  4  Me.  532;. 
Buchan  v.  James,  r  Speers  Eq.  (S.  C.)  375;  Salterlee  v.  Fraser,  2  Sandf.  (N.  Y. 
Superior  Ct.)  142;  Walradt  v.  Maynard,  3  Barb.  (N.  Y.)  5S4;  MacNair  v.  Ken- 
non,  3  Murph.  (N.  C.)  139;  Lever  v.  Lever,  1  Hill  (S.  C.)  Eq,  47;  Taylor  v. 
Spears,  8  Ark.  429.  In  Staniford  v.  Tuttle,  4  Vt.  82,  and  Collard  v.  Turtle,  id. 
491,  it  was  held  that  when  a  demand  is  necessary  to  perfect  a  right  of  action, 
and  put  the  statute  in  motion,  a  demand  would  be  presumed  from  the  lapse 
of  time,  and  such  dealings  between  the  parties  as  render  it  improbable 
that  it   should    be    neglected.      See   also    Raymond    v.    Simonson,    4    Blackf. 

(Ind.)77. 

1  Drexel  v.  Raimond,  23  Penn.  St.  21.  See  also  Jett  v.  Hempstead,  25  Ark. 
462.  See  contra,  McDowell  v.  Potter,  8  Penn.  St.  190,  in  which  it  was  held 
that,  "  before  an  agent  can  be  permitted  to  avail  himself  of  the  statute,  he  must 
prove  that  he  has  performed  his  duty.  His  omission  to  do  so  amounts  to  such 
concealment  of  the  slate  of  the  business  as  in  contemplation  of  law  is  such  a 
fraud  as  deprives  him  of  the  protection  of  the  statute."  This  is  upon  the  ground 
that  the  principal  may  depend  upon  the  integrity  of  his  agent,  without  vigilance, 
.i-i  1  that  the  failure  of  the  agent  to  discharge  his  duty  is  per  se  a  fraud.  But 
this  is  hardly  sustainable,  and  is  overruled  by  Rhine  i>.  Evans,  66  Penn.  St. 
See  also  Campbell  v.  Boggs,  48  id    524. 


§   I23-]  AGENTS,    FACTORS,    ETC.  3 1  3 

him.1  In  Connecticut,  it  is  held  that  no  demand  is  necessary  in 
the  case  of  an  ordinary  collecting  agent,  and  that  the  statute 
begins  to  run  from  the  time  when  the  money  was  received  by 
the  agent.2  In  this  case  the  court  put  its  decision  upon  the 
ground  that  money  collected  by  an  agent  is  recoverable  at  law, 
and  only  at  law,  by  the  ordinary  legal  remedies;  in  other  words, 
that,  in  the  ordinary  relation  of  a  principal  and  a  collecting  agent, 
the  agent  becomes  a  debtor  for  the  money  as  soon  as  it  is 
received,  and  that  may  properly  be  charged  in  account  against 
him,  and  recovered  by  action  of  book  account  where  that  form 
of  action  exists,  or  in  assumpsit  at  the  election  of  the  principal, 
and  that  the  agent  cannot  properly  be  said  to  take  or  hold  the 
money  as  a  trustee   under  an   express  trust.3     The  difference  of 

1  Merle  v.  Andrews,  4  Tex.  200;  Gardner  v.  Peyton,  5  Cranch  (U.  S.  C.  C.) 
560;  Buchanan  v.  Parker,  5  Ired.  (N.  C.)  507;  Judah  v.  Dyott,  3  Blackf.  (Ind.) 
324;  Lever  v.  Lever,  1  Hill  (S.  C.)  Eq.  62;  Taylor  v.  Spears,  8  Ark.  429;  Hyrnan 
v.  Gray,  4  Jones  (N.  C.)  L.  155;  Topham  v.  Braddick,  r  Taunt.  572;  Green  v. 
Johnson,  2  G.  &  J.  (Md.)  3S9;  Dodds  v.  Vannoy,  61  Ind.  89;  Egerton  v.  Logan, 
81  N.  C.  172.  In  Green  v.  Williams,  21  Kan.  64,  it  was  held  that,  in  the  absence 
of  a  contract  between  the  principal  and  his  agent  as  to  when  or  how  the  money 
collected  by  him  is  to  be  sent,  the  statute  does  not  begin  to  run  until  after 
demand  and  refusal. 

2  Hart's  Appeal,  32  Conn.  520;  Lawrence  University  v.  Smith,  32  Wis.  587. 
In  Reitz  v.  Reitz,  14  Hun  (N.  Y.)  536,  the  defendant  in  1854  was  intrusted  by 
the  mother  of  the  plaintiff  and  defendant  with  certain  money,  and  that  with  this 
he  purchased  certain  real  estate  and  took  the  title  in  his  own  name,  and  after- 
wards, with  the  consentof  his  mother,  he  erected  buildings  thereon  and  collected 
the  rents.  The  mother  died  in  1866,  leaving  the  plaintiff  and  defendant  as  her 
only  children.  The  court  held  that  the  statute  had  run  against  all  claim  for 
the  money  in  the  defendant's  hands  before  his  mother  died.  "An  agency," 
said  Barnard,  P.  J.,  "  is  not  such  a  technical  trust  as  to  prevent  the  application 
of  the  statute  of  limitations."  Renwick  v.  Renwick,  1  Bradf.  (N.  Y.  Surr.)  234; 
Murray  v.  Coster,  20  Johns.  (N.  Y.)  576;   Lillie  v.  Hoyt,  5  Hill  (N.  Y.)  396. 

3  In  this  case  the  circumstances  induced  the  court  to  bend  the  rules  in  favor 
of  the  plaintiff.  The  court  said  in  part:  "  We  have  never  adopted  the  expe- 
dient which  has  prevailed  to  some  extent  in  other  States,  of  taking  cases  out  of 
the  statute  upon  some  doubtful  or  equivocal  acknowledgment,  but  have  always 
held  that  the  party  must  have  intended  to  relinquish  its  protection,  or  ihat  its 
provisions  must  be  applied;  and  our  courts  have  called  it  a  beneficial  statute, 
and  have  looked  upon  the  lapse  of  time  prescribed  as  a  bar  to  the  bringing  of 
an  action  as  furnishing  a  presumption  of  payment  rather  than  as  an  arbitrary 
statutory  bar  to  a  valid  claim.  Judge  Hosmer  quotes  with  approbation  the 
language  of  Chief  Justice  Parsons,  in  which  he  lays  down  the  principle  that  the 
presumption  from  the  lapse  of  time  is  that  the  defendant  has  lost  the  evidence 
which  would  have  availed  him  in  his  defense  if  seasonably  called  on  for  pay- 
ment; and  Judge  Daggett  expresses  his  satisfaction  in  rejecting  the  grounds  on 


314  STATUTES   OF   LIMITATION.  [CHAP.   XL 

opinion,  whether  a  right  of  action  exists  against  an  agent  until  a 
demand  has  been  made  upon  him  has  arisen  upon  the  question 
as  to  what  contract  is  to  be  implied  on  the  agent's  part,  when  he 
assumes  the  relation  to  his  principal.  Formerly,  it  was  thought 
that  account  was  the  only  remedy  against  an  agent,  and  later, 
that  assumpsit  could  not  be  maintained  unless  there  had  been  an 
express  promise  to  account.1 

which  an  attempt  was  made  to  evade  it.  Lord  v.  Shaler,  3  Conn.  131;  Marshall 
v.  Dalliber,  5  id.  480;  Weed  v.  Bishop,  7  id.  128;  Peck  v.  Botsford,  id.  172. 
*  *  *  Is  not  ihe  duty  of  a  collecting  agent  to  seek  his  principal  and  pay  over 
the  money  collected  as  obvious  and  clear  as  any  duty  he  has  to  perform?  An 
action  will  lie  against  a  sheriff  who  collects  money  on  execution  wilhout  any 
previous  demand.  And  in  respect  to  the  moneys  collected  of  the  Ohio  agents, 
it  would  seem  that  Mr.  Bull  could  stand  upon  no  higher  ground.  Dale  v.  Birch, 
3  Camp.  347;  Jefferies  v.  Sheppard,  3  B.  &  Aid.  696.  But  if  an  action  could 
have  been  brought  for  ihis  money  without  a  previous  demand,  then,  as  the  rule 
must  be  reciprocal,  the  statute  commenced  running  at  the  time  the  money  was 
received.  Lillie  v.  Hoyt,  5  Hill  (N.  Y.)  395.  It  was  suggested  that  there  were 
taxes  and  other  expenses  to  be  paid  out  of  these  funds.  This,  however,  does 
not  appear,  and  the  fact  that  the  money  was  remilted  to  Mr.  Bull  by  other 
agents  of  Miss  Hart  residing  in  Ohio,  where  the  lands  were  situated,  raises  a 
strong  presumption  that  only  the  net  avails,  after  all  charges  of  this  sort  had 
been  deducted,  were  sent  to  him,  so  that  his  only  duty  must  have  been  to  pay 
over  the  sums  as  they  were  received.  We  do  not  see,  therefore,  how  Mr.  Bull's 
condition  was  anything  other  than  that  of  an  ordinary  collecting  agent;  and  if 
we  are  correct  in  this,  there  can  be  no  doubt  that  the  statute  of  limitations 
applies  to  the  case." 

1  In  Claik  v.  Moody,  17  Mass.  145,  Parker,  C.  J.,  said:  "  The  doctrine  now 
settled  is,  that  the  underlaking  to  act  as  bailiff  is  an  undertaking  to  account; 
and  Lord  Holt  says,  whenever  one  acts  as  bailiff,  he  promises  to  render  an 
account;  '  although,'  he  adds,  '  in  Comyn  on  Contracts  the  inference  from  this 
case  is  made  to  be,  that  the  factor  is  liable  only  on  demand,  or  on  refusal  to 
pay  money,'  yet,  if  the  general  principle  adopted  by  Holt  is  right,  that  the  mere 
acting  as  bailiff  is  promising  to  account,  it  would  not  seem  that  a  demand  is  in 
all  cases  necessary  to  enable  the  principal  to  maintain  his  action."  *  *  * 
In  the  case  before  us,  the  referees  state  that,  when  the  account  was  sent  on, 
which  acknowledges  the  balance,  it  was  accompanied  by  a  letter  from  the 
defendants,  in  which  they  state  that  they  hold  the  balance  for  the  order  of  the 
plaintiff.  This  declaration  is  repeated  in  the  following  month;  and  it  appears 
by  the  account  stated  by  the  referees  that  all  the  proceeds,  except  the  balance 
a  knowledged,  had  been  paid  by  drafts  from  the  plaintiff.  These  facts,  with 
n  -tiling  of  a  contrary  complexion,  go  far  to  show  that  the  consignments  were 
accepted  with  an  understanding  that  the  proceeds  were  not  to  be  remitted  with- 
out orders  from  the  consignor.  The  case  in  this  view  seems  to  be  at  least  as 
strong  as  Ferris  v.  Paris,  10  Johns.  (N.  Y.)  285,  in  which  it  was  decided  that 
the  consignee  was  not  liable  in  the  action,  because  he  had  committed  no  breach 
f  trust  or  duty.      It  appeared  in  that  case  to  be  the   usage  for  the  consignor  to 


§   I  23.]  AGENTS,    FACTORS,    ETC.  3  I  5 

From  the  cases  cited  in  this  and  the  previous  section  it  may  be 
said  that  the  tendency  of  the  court  is,  to  hold  that,  in  the  case 
of  an  ordinary  collecting  agent,  whose  only  duty  is  to  receive  and 
pay  over  the  money  to  his  principal,  the  statute  begins  to  run 
immediately  upon  the  receipt  of  the  money,  regardless  of  the 
question  whether  a  demand  has  been  made  or  not,  unless  he  has 
fraudulently  concealed  the  fact  of  its  receipt  by  him,1  or  in  any 
event  after  the  lapse  of  a  reasonable  time  after  he  has  received 
it,  in  which  to  notify  his  principal.2  Where  the  agent  has  prop- 
direct  the  mode  of  remittance;  and  it  probably  is  the  general  practice  every, 
where.  Such  practice,  together  with  the  conduct  of  the  defendants  in  the  case 
before  us,  may  justify  the  conclusion  that  this  consignment  was  made  and 
accepted  conformably  to  this  practice.  But  this  is  a  tact  to  be  stated  by  the 
referees,  and  not  by  the  court.  If  they  determine,  from  the  evidence  in  the 
case,  that  the  understanding  of  the  parlies  was,  that  the  consignor  was  to  direct 
the  remittance,  to  draw  for  the  proceeds,  or  otherwise  appropriate  them,  then 
the  defendants  were  not  liable  to  the  suit;  and  of  course  not  to  the  costs, 
unless  they  were  negligent  in  transmitting  their  account,  or  upon  another 
ground  they  rendered  themselves  liable."  When  there  is  an  understanding 
between  the  parties  that  the  agent  is  to  account  or  pay  on  demand,  the  agree- 
ment takes  the  place  of  any  implied  contract,  and  controls.  Baker  v.  Joseph, 
16  Cal.   173. 

Wilkin  v.  Wilkin,  r  Salk.  9.  In  Green  v.  Williams,  21  Kan.  64,  it  was  held 
that  in  the  absence  of  any  agreement  between  a  principal  and  his  agent  resid- 
ing in  another  State,  as  to  when  or  how  money  collected  by  him  shall  be  sent  to 
the  principal,  the  statute  does  not  begin  to  run  in  favor  of  the  agent  until  a 
demand  has  been  made  upon  him  for  the  money,  or  at  all  events  until  direc- 
tions have  been  given  him  as  to  how  it  shall  be  sent. 

1  Campbell  v.  Boggs,  48  Penn.  St.  524;  Emmons  v.  Hayward,  6  Cush.  (Mass.) 
501;  East  India  Co.  r>.  Paul,  1  Eng.  L.  &  Eq.  44.;  Estes  z'.  Stokes,  2  Rich.  (S.  C.) 
123;  Hopkins  v.  Hopkins,  4  Strobh.  (S.  C.)  Eq.  207;  Cogwin  v.  Ball,  2  111.  App. 
70.  In  Dodds  v.  Vannoy,  61  Ind.  89,  it  was  held  that  a  creditor  who  takes  a 
note  from  his  debtor  to  be  collected  and  applied  to  the  payment  of  his  debt,  and 
the  balance  to  be  paid  to  the  debtor,  is  the  debtor's  agent,  and  not  liable  for 
the  balance  until  demand  has  been  made  therefor.  The  statute  begins  to  run 
against  the  claim  of  a  principal  to  recover  from  an  agent  who  has  collected  a 
note  for  him,  from  the  time  when  the  note  was  collected.  Lawrence  University 
v.  Smith,  32  Wis.  587. 

s  In  Mitchell  v.  McLemore,  9  Tex.  151,  it  appeared  that  in  November,  1S39, 
the  defendant  agent  acknowledged  the  receipt  from  the  plaintiff  of  a  sum  of 
money  to  be  invested  in  paying  government  fees  for  Texas  scrip,  placed  in  his 
hands  for  location.  This  he  failed  to  do,  and  in  1S50  the  plaintiff  brought  an 
action  to  recover  back  the  money.  The  court  held  that  it  was  the  duty  of  the 
agent  to  perform  what  he  had  undertaken  to  do,  within  a  reasonable  time,  and 
that  when  he  violated  his  duty  by  allowing  that  time  to  pass  without  perform, 
ing  it,  he  rendered  himself  liable  to  an  action,  and  from  that  time  the  statute 
ran,  and  that  in  this  case  it  had  begun  to  run  and  become  a  bar  to  the  action 


316  STATUTES   OF   LIMITATION.  [CHAP.    XI. 

erly  notified  his  principal  of  the  collection,1  or  where  he  has 
rendered  him  an  account  of  his  transactions,  the  statute  runs 
from  the  receipt  of  such  notice  or  account  by  the  principal.2 
And  in  the  case  of  factor's  other  agencies,  involving  a  more 
complicated  condition,  the  question  as  to  whether  a  demand  is, 
essential  to  complete  the  liability  of  the  agent  will  depend  upon 
the  nature  and  character  of  the  business,  and  the  contract  that 
is  fairly  implied  therefrom,  in  view  of  all  the  circumstances.3 
There  is  apparently  no  good  reason  why  a  principal,  in  the  case 
of  ordinary  agencies,  should  be  protected  against  his  own  laches 
any  more  than  any  other  creditor;  and  such  cases  seem  clearly 
to  be  within  the  very  mischiefs  that  the  statute  designed  to  cor- 
rect, and,  except  in  those  cases  where  the  agent  stands  in  the 
position  of  a  trustee  under  an  express  trust,  or  has  been  guilty 
of  actual  fraud  in  concealing  his  liability  to  his  principal,  there 
is  no   good  reason  why  the  statute   should  not  commence  to  run 

before  it  was  brought.  See  also,  to  the  same  effect,  Denton  v.  Embury,  10  Ark. 
228;  Jett  v.  Hempstead,  25  id.  462.  This  rule  was  also  adopted  in  Hickok  v.. 
Hickok,  13  Barb.  (N.  Y.)  632;   McDonnell  v.  Bank  of  Montgomery,  20  Ala.  313. 

1  Lyle  v.  Murray.  4  Sandf.  (N.  Y.)  590;    Davies  v.  Cram,  4  Sandf.  (N.  Y.)  355. 

2  McCoon  v.  Galbraith,  29  Penn.  St.  293. 

3  Clark  v.  Moody,  supra.  This  rule  furnishes  the  key  to  the  many  apparently 
conflicting  decisions  upon  the  question  as  to  when  the  statute  attaches  against 
the  principal.  Thus,  where  an  agent  is  authorized  to  collect  money  for  his 
principal,  and  nothing  is  said  as  to  when  he  shall  pay  it  over,  what  contract 
does  the  law  fairly  raise  from  the  relation?  The  circumstances  of  the  case  and 
the  situation  of  the  parties,  the  nature  of  the  transaction  and  the  probable  dura- 
tion of  the  relation,  are  all  to  be  looked  to.  If  the  parties  are  in  the  same  town 
or  city,  or  so  situated  as  to  be  frequently  together,  the  presumption  naturally 
is  that  the  parties  intended  that  when  the  money  was  collected  the  agent  should 
pay  it  over  to  the  principal,  or  at  the  least  notify  him  of  the  fact  of  collection, 
so  as  to  give  him  an  opportunity  to  call  for  it  in  person,  or  direct  how  it  should 
be  paid.  If  the  parties  are  distant  from  each  other,  the  presumption  that  the 
agent  was  expected  to  notify  the  principal,  and  await  his  directions  as  to  the 
disposition  to  be  made  of  the  funds,  because  it  could  not  have  been  con- 
templated that  the  agent  should  pay  ihe  money  in  person,  or  that  the  principal 
should  call  upon  him,  in  person,  for  it.  Hence,  in  such  a  case  the  presumption 
would  be  that  the  parties  intended  that  the  agent  should  notify  him  when  the 
money  was  collected,  so  as  to  give  the  principal  an  opportunity  to  direct  how  it 
should  be  disposed  of;  and  in  the  latter  case  the  statute  would  begin  to  run 
from  the  receipt  of  the  notice,  Lyle  v.  Murray,  supra;  Jett  v.  Hempstead,  supra; 
while  in  the  former  case  it  would  run  from  the  receipt  of  the  money  by  the 
agent,  Glenn  "'.  Cuttle,  supra;  as  the  principal  is  charged  with  some  diligence 
in  looking  after  his  own  business.  Hart's  Appeal,  32  Conn.  520;  Clark  v. 
Moody,  supra. 


§  1 23.]  AGENTS,    FACTORS,    ETC.  317 

in  his  favor  after  the  lapse  of  a  reasonable  period  in  which  to 
give  notice  to  his  principal.1  {a)  If  a  person  intrusts  important 
interests  to  the  care  of  another,  leaving  the  whole  matter  resting 
in  parol,  there  is  no  reason  why  a  judicial  exception  should  be 
made  in  his  favor  to  take  his  interests  out  of  the  operation  of  the 
statute,  when,  by  the  exercise  of  proper  business  discretion  or  of 
reasonable  diligence  on  his  part,  his  interests  would  have  been 
properly  protected ;  nor,  where  the  agent  has  unreasonably 
delayed  notice  to  his  principal  of  the  fact  of  collection,  can  he 
claim  the  benefit  of  the  rule  that  a  demand  shall  be  made  before 
action  brought.2  Where  goods  are  left  with  a  person  to  be  sold 
on  commission,  and  when  sold  to  be  accounted  for  to  the  princi- 
pal, in  the  absence  of  any  express  contract  the  law  will  from  the 
facts  imply  one  on  his  part  to  account  to  his  principal  on  demand, 
and  in  such  a  case  the  statute  would  not  run  in  his  favor 
until  a  demand  has  been  made,3  or  until  the  lapse  of  such  a 
period  that  the  law  will  presume  that  a  demand  has  been  made.4 
But,  as  previously  stated,  it  must  not  be  forgotten  that  the 
weight  of  authority  sustains  the  rule  that  a  right  of  action  does 
not  accrue  until  after  a  demand.5     Where  a  person  claims  to  act 

'Glenn  v.  Cuttle,  2  Grant's  Cas.  (Penn.)  273;  Fleming  v.  Culbert,  46  Penn. 
St.  49S. 

5  Estes  v.  Stokes,  2  Rich.  (S.  C.)  133.  In  the  case  of  a  general  agency,  where 
the  business  runs  through  a  considerable  period,  the  statute  of  limitations  does 
not  begin  to  run  until  the  expiration  of  the  agency,  especially  where  there  is  a 
current  account.  But  if  the  transactions  are  isolated,  the  statute  attaches  to 
each  in  the  order  of  their  event.  Hopkins  v.  Hopkins,  4  Strobh.  (S.  C.)  Eq. 
207;  Parris  v.  Cobb,  5  Rich.  Eq.  (S.  C.)  450.  Where  one  member  of  a  firm  was 
appointed  agent  for  the  others  ,  to  collect  the  debts  due  the  firm  and  account 
for  them  as  fast  as  received,  or  whenever  required  by  the  other  partners.  "  The 
moneys,"  said  Taylor,  J.,  "  were  received  by  him  in  the  character  of  a  truslee, 
liable  to  pay  what  he  should  receive  when  his  copartners  should  require  it,  and 
it  was  only  when  they  did  require,  and  he  realized  it,  that  this  fiduciary 
character  was  put  an  end  to."  MacNair  v.  Kennon,  3  Murph.  (N.  C.)  139.  See 
Sims  v,  Brutton,  5  Exch.  802. 

3  Holden   v.    Crafts,  supra;  Baird   v.  Walker,   12  Barb.  (N.  Y.)  298;  Judah  v. 
Dyott,  3  Blackf.  (Ind.)  324;  Clark  v.  Moody,  supra. 
*  Topham  v.  Braddick,  supra. 

6  See  note  1,  p.  339.  In  Middleton  v.  Twombley,  125  N.  Y.  520,  it  w\s  held 
that  the  rule  that  an  action  at  law  cannot  be  maintaintd  bv  partners  repre>ent- 

(a)  When     notice    or    knowledge    is  noiice    to    his     principal.        Irvine     v. 

necessary  before  a  right  of  action  ac-  Grady,  S5    Tex.    120;   Presidio   County 

crues  so  that  the  statute  of  limitations  v.  Shock  (Tex.  Civ.  App.),  60  S.  W.  287. 
begins    to    run,   notice   to  an  agent  is 


3lS  STATUTES   OF   LIMITATION.  [CHAP.   XL 

as  the  agent  of  another,  without  any  authority  whatever,  or 
where  he  is  in  fact  an  agent  but  acts  in  excess  of  either  his  real 
or  apparent  authority,  a  person  who  has  dealt  with  him  on  the 
credit  of  his  supposed  principal  may  bring  an  action  against  the 
agent  at  any  time  within  six  years  from  the  time  when  he  has 
notice  of  the  fact  that  the  acts  were  unauthorized.1  On  the  other 
hand,  where  an  agent  becomes  personally  liable  for  a  debt  which 
he  had  authority  to  create,  and  which  the  principal  should  pay, 
the  statute  does  not  commence  to  run  against  his  claim  for 
indemnity  until  he  had  paid  the  debt;4  and  where  he  has  sold 
property  for  his  principal  which  proves  worthless,  whereby  he  is 
subjected  to  loss,  the  statute  does  not  begin  to  run  until  he  is 
subjected  to  such  loss;3  that  is,  until  he  has  been  compelled  to 
respond  in  damages  in  consequence  of  the  defects  in  the  goods 
sold. 

ing  partnership  transactions,  does  not  apply  to  actions  upon  express  or  implied 
promises  in  relation  to  special  transactions,  or  where  a  balance  has  been 
declared,  or  where  the  transaction  does  not  involve  an  accounting  as  to  partner- 
ship transactions;  and  that,  when,  from  the  usual  course  of  business,  or  pursu- 
ant to  special  contract  and  instructions,  a  foreign  factor  has  been  in  the  habit 
of  remitting  the  proceeds  of  consignments  received  by  him  without  demand 
from  the  consignor,  it  is  his  duty  to  remit  the  proceeds  of  future  consignments 
without  waiting  for  demand,  and  a  cause  of  action  against  him  accrues  upon 
the  receipt  of  such  proceeds,  and  his  failure  to  remit. 

1  Flack  v.  Haynie,  iS  Tex.  46S. 

sGilmore  v.  Bussey,  12  Me.  418. 

3  Legare  v.  Fraser,  3  Strobh.  (S.  C.)  377. 


§   1 24. J  BILLS,    NOTES,    CHECKS,    ETC.  319 


CHAPTER  XII. 
Bills,  Notes,  Checks,  Etc. 

Sec.   124.  When  payable  on   Demand.     Sec.   132.  Bills   and    Notes   subject  to 

125.  Notes  or  Bills  payable  "  after  Grace. 

Demand,"  "  after  Sight,"  133.  Notes  payable  upon  the  hap- 

etc.  pening  of  a  Contingency. 

126.  Notes  and  Bills   payable   by  134.   Indorser  of  Notes  or  Bills. 

Instalments.  135.   Acceptor  of  Bill. 

127.  Coupons,  Interest  Warrants,  136.   Drawer  of  Bill. 

etc.         ,  137.  Suspension     of    Statute    by 

128.  Notes    payable    in     Specific  Agreement  of  the  Parties. 

Articles.  138.  Goods   sold   on   Credit  to  be 

129.  Notes  subject  to  Assessment.  paid  in  Note  within  Certain 

130.  Bill  of   Exchange  payable  at  Time. 

Parlicular  Place.  139.   Witnessed  Notes. 

131.  Bills  accepted  after  Maturity.  140.   Checks. 

Sec.  124.  When  payable  on  Demand.  —  As  has  already  been 
stated,  the  statute  of  limitations  begins  to  run  upon  a  bill  or  note 
payable  at  a  fixed  date,  upon  its  maturity,  which  is  the  day  suc- 
ceeding that  upon  which  it  becomes  due,  as  the  payor  has  the 
whole  of  the  day  upon  which  it  becomes  due  in  which  to  pay  it.1 

•Ferris  v.  Williams,  1  Cranch  (U.  S.  C.  C.)  475;  Short  v.  McCarthy,  3 
B.  &  Aid.  631;  Wittersheim  v.  Carlisle,  1  H.  Bl.  631.  And  this  is  so,  even 
though  the  action  would  then  be  fruitless.  Emery  v.  Day,  1  C.  M.  &  R.  245. 
In  Raefle  v.  Moore,  58  Ga.  94,  it  was  held  that  a  note  payable  one  day  after  dale 
became  due  on  the  next  day,  but  could  not  be  sued  until  the  next  day,  even 
though  the  note  was  antedated,  and  that  a  suit  brought  on  the  day  it  became 
due  would  be  premature.  A  note  payable  one  day  after  date,  dated  Dec.  14,  1850, 
was  sued  Dec.  16,  1854,  and  it  was  held  barred  bv  the  statute.  Smith  v.  Wilson, 
15  Tex.  132.  Bat  on  such  a  note  an  action  commenced  Dec.  14,  1S54,  would  have 
been  in  season.  Cornell  v.  Moulton,  3  Den.  (N.  Y.)  12.  On  such  a  note  the  statute 
begins  to  run  on  the  succeeding  day.  Davis  v.  Eppinger,  18  Cal.  378.  In  En~el 
v.  Fischer,  102  N.  Y.  400,  where  the  defendant,  at  Vienna,  Austria,  where  he 
resided,  accepted  a  bill  of  exchange,  dated  May  1,  1873,  payable  three  months 
from  date.  Soon  after  he  absconded,  coming  to  New  York  in  July  of  that  year, 
where  he  concealed  himself  from  his  creditors,  and  the  plaintiff  discovered  him 
in  1882,  demanded  payment  of  his  bill,  and,  upon  his  refusal,  brought  suit 
upon  the  acceptance,  it  was  held  that  the  action  was  barred  by  the  statute; 
that  the  case  was  not  within  any  statutory  exception;  and  that  the  plain 
language  of  the  statute  may  not  be  perverted  to  remedy  the  hardship  or  injus- 
tice of  any  particular  case.  See  Sleght  v.  Kane,  1  Johns.  Cas.  (N.  Y.)  76; 
Poillon  v.  Lawrence,  77  N.  Y.  207. 


320  .  STATUTES    OF    LIMITATION.  [CHAP.  XII. 

Notes  payable  "  on  demand  "  become  due  and  payable  from 
their  date,  in  the  absence  of  any  statute  to  the  contrary,  and 
consequently  the  statute  begins  to  run  thereon  from  their  date,1 
if  delivered  on  that  day;  (a)  but  if  it  is  not  delivered  on  the 
day  of  its  date,  the  statute  begins  to  run  from  the  date  of  its 
delivery,  and  not  from  its  date,  because  until  delivered  it  does 
not  become  operative,  and  no  right  of  action  exists  until  that 
time.2    And  the  same  is  also  true  as  to  notes  payable  "  at  sight,"  3 

1  Wilks  v.  Robinson,  3  Rich.  (S.  C.)  182;  Easton  v.  M'Allister,  1  Mo.  662; 
Taylor  v.  Witman,  3  Grant's  Cas.  (Penn.)  138,  Larason  v.  Lamberi,  12  N.  J.  L. 
247;  Hill  v.  Henry,  17  Ohio,  9;  Hirst  v.  Brooks  50  Barb.  (N.  Y)  334;  Newman 
v.  Kettell,  13  Pick.  (Mass.)  418;  Wenman  v.  Mohawk  Ins.  Co.,  13  Wend.  (N.  Y.) 
267;  Fells  Point  Sav.  Inst'n  v.  Weedon,  18  Md.  320;  White's  Bank  v.  Ward,  35 
Barb.  (\T.  Y.)  637;  Mills  v.  Davis,  113  N.  Y.  243.  See  Caldwell  v.  Rodman,  5 
Jones  (N.  C.)  L.  139;  Presbrey  v.  Williams,  15  Mass.  193;  Easton  71.  Long,  1 
Mo.  662;  Little  v.  Blunl,  9  Pick.  (Mass.)  488;  Codman  v.  Rogers,  10  id.  112. 
The  fact  that  the  statute  provides  that  any  negotiable  note,  which  remains 
unpaid  four  months,  shall  be  overdue,  does  not  change  the  rule,  and  the 
statute  begins  to  run  from  the  date  of  the  note.  Trustees,  etc.  v.  Smith,  52 
Conn.  434.  In  McMullen  v.  Rafferty,  S9  N.  Y.  456,  one  H.  executed  and 
delivered  to  plaintiff  anon-negotiable  note,  made  payable  on  demand,  upon  the 
back  of  which  defendant  had  written  his  name.  In  an  action  thereon,  it  was 
held  that  the  defendant  did  not,  in  a  commercial  sense,  become  an  indorser, 
hut  could  be  treated  by  the  plaintiff  either  as  maker  or  guarantor;  and  in  either 
capacitv  the  cause  of  action  accrued  against  him  immediately  upon  the  execu- 
tion of  the  note  and  without  demand.  In  Thrall  v.  Mead,  40  Vt.  540,  in  an 
.action  on  a  note  payable  on  demand,  it  was  held  that  six  years  was  a  reason- 
able time  in  which  to  make  the  demand,  and  that  the  statute  runs  from  that 
time.  The  words  "  on  demand,"  "  at  sight,"  etc.,  do  not  constitute  a  condition 
precedent,  but  rather  to  import  that  the  debt  is  due  immediately.  Byles  on  Bills, 
342.  Unless  accompanied  by  some  writing  restraining  or  postponing  the  right 
of  action,  the  statute  runs  thereon  from  its  date.  Christie  v.  Fosdick,  Sel.  N. 
P.  351;  Megginson  v.  Harper,  2  C.  &  M.  322;  Garden  v.  Bruce,  L.  R.  3  C.  B. 
300.  In  Lee  v.  Cassin,  2  Cranch  C.  C.  112,  a  note  payable  on  demand  was  held 
not  payable  until  demand  made;  but  this  case  stands  alone.  Ruff  v.  Bull,  7 
H.  &  I.  (Md.)  14;  Peaslee  v.  Breed,  10  N.  H.  4S9.  The  same  rule  prevails  in 
Scotland.  Stephenson  v.  Stephenson,  ir  F.  C.  Sc.  639;  De  Lavallette  v.  Wendt, 
75  N.  Y.  579;  Wheeler  v.  Warner,  47  id.  519. 

■'Craft  v.  Thomas,  123  Ind.  513;  O'Neil  v.  Magnet,  81  Cal.  631,  Jones  v. 
Nicoll,  82  Cal.  32. 

3Copp  v.  Lancaster,  Cro.  Eliz.  548;  Mcintosh  v.  Haydon,  Ry.  &  M.  363; 
Rumball  v.  Bull,  10  Mod.  38;  Collins  v.  Benning,  12  id.  444. 

(a)  See   Wright  ?'.  Tichenor,  104  Ind.  Seward     v.     Hayden,    150    Mass.     158; 

Kraft    v.    Thomas,    123   Ind.   513.  Walker  v.  John  Hancock  Mut.  L.  Ins. 

I  nthe  absence  of  evidence  of  a  contrary  Co.,  167  Mass.  188;  Bemis  v.  Leonard, 

intention,  the  word9  "  from  date  "  ex-  11S    Mass.    502;  Kendall   v.   Kingsley, 

elude  the  day  of  date,  either  in  a  prom-  120  Mass.   94;  Jager  v.  Vollinger.  174 

>te     or    an    insurance    policy.  Mass.  521. 


■'§  1 24.]  BILLS,    NOTES,    CHECKS,    ETC.  321 

"  when  demanded,"  or  "  when  called  for,"  *  or  "  in  such  instal- 
ments or  at  such  times  as  C.  may  require, "  2  or  "  when  wanted, ' ' 3 
or  indeed  any  note  in  which  no  time  for  payment  is  expressed.4 
Thus,  in  Iowa  a  bill  of  exchange,  in  which  no  time  for  payment 
was  fixed,  was  held  to  be  payable  on  demand,  and,  theretore,  not 
entitled  to  "race  under  the  statutes  of  that  State.5  But  a  note 
may  be  so  drawn  as  to  be  payable  at  the  option  of  the  payee, 
either  at  once  or  on  the  happening  of  a  contingency.0  The  fact 
that  a  note  is  payable  "  on  demand  with  interest  after  four 
months  "  does  not  change  the  rule,  or  raise  a  presumption  that 
it  was  only  to  become  payable  after  a  demand  in  fact.7  A  note 
or  bill  indorsed  or  accepted  after  it  is  due,  is,  as  against  the 
acceptor  or  indorser,  a  note  or  bill  payable  on  demand.8  A  bill 
of  exchange  is  subject  to  the  same  rules  in  this  respect  as  a  note, 
and  a  bill  payable  "  on  presentation,"  or  "on  demand  at  sight," 
is  treated  as  though  payable  "at  sight,"  9  and,  therefore,  the 
statute  runs  upon  it  from  its  date. 

In  case  property  is  sold,  or  money  loaned,  to  be  retained  with- 

!  Bowman  v.  McChesney,  22  Gratt.  (Va.)  609;   Kingsbury  v.  Butler,  4  Vt.  458. 

s  White  v.  Smith,  77  111.  351.  But  see  Creighton  v.  Rosseau,  1  Iowa,  133, 
where  a  note  made  payable  "  at  any  time  within  two  years  "  was  held  not  to 
become  payable  until  two  years  from  its  date,  unless  the  holder  made  demand 
at  an  earlier  date  in  which  case  it  became  due,  and  the  statute  runs  from  the 
date  of  demand. 

3  Dorrance  v.  Morrison,  MS.  Case,  District  Court,  Philadelphia,  June  17,  184S. 

4  Aldous  v.  Cornwell,  L.  R.  3  Q.  B.  573;  Holmes  v.  West,  17  Cal.  623;  Whit- 
lock  v.  Underwood,  2  B.  &  C.  157.  In  Tucker  v.  Tucker,  119  Mass.  79,  the  note 
in  suit  was  lost,  and  there  being  no  evidence  as  to  when  the  note  became  pay- 
able, the  court  held  that  it  might  be  presumed  that  it  was  payable  on  demand, 
in  the  absence  of  any  proof  upon  that  point.  In  Young  v.  Weston,  39  Me.  492, 
a  nole  given,  payable  "  at  any  time  within  six  years  from  this  date,"  was  held 
to  be  a  note  payable  on  demand,  and  that  the  statute  attached  to  it  from  its  date. 

5  Davenport  Bank  v.  Price,  52  Iowa,  570. 

6  In  an  action  brought  upon  a  note  dated  Jan.  1,  1S65,  payable  in  gold  or 
silver,  where  Ihe  note  contained  this  claim.  "  This  promise  to  pay  is  on  con- 
dition that  the  banks  of  Tennessee  have  resumed  specie  payment  at  that  time; 
if  not,  as  soon  thereafter  as  they  do  resume  specie  payment;  and  the  court  held 
that  the  payee  could  waive  payment  in  gold  or  silver  and  recover  currency, 
without  waiting  for  the  banks  to  resume,  and  that  the  question  when  the  statute 
began  to  run  on  the  note  depended  upon  whether  the  holder  of  the  note  had 
waived  payment  in  specie."     Walters  v.  McBee,  1  Lea  (Tenn.)  364. 

'Loring  v.  Gurney,  5  Pick.  (Mass.)  15;  First  National  Bank  v.  Price,  52  Iowa, 
570. 

8  Rodgers  v.  Rosser,  57  Ga.  319;   Patterson  v.  Todd,  18  Penn.  St.  426. 
»  Dixon  v.  Nuttall,  I  C.  M.  &  R.  307. 
[stats,  of  lim.  —  21.] 


322  STATUTES   OF   LIMITATION.  [CHAP.    XII. 

out  interest  until  called  for  or  demanded,  and  no  note  is  given 
therefor,  the  statute  does  not  begin  to  run  until  demand  is  made, 
as  the  rules  of  commercial  law  are  not  applicable  in  such  cases ; ' 
and  the  implied  contract  raised,  and  which  controls,  is,  that  the 
debt  is  not  due  or  payable  until  demand  or  something  equivalent 
thereto  is  made.  Where  a  note  is  given  payable  on  demand,  but 
at  the  same  time  an  agreement  is  executed  which  is  to  be  taken 
in  connection  with  it,  and  by  the  terms  of  which  the  note  is  only 
to  become  payable  in  a  certain  contingency,  the  right  of  action 
does  not  accrue  nor  the  statute  begin  to  run  thereon  until 
such  contingency  accrues.2  *  *  *  We  think  that  the  mere 
existence  of  the  debt,  unaccompanied  by  any  claim  by  the  bank, 
would  not  have  the  effect  of  making  the  statute  run  from  that 
date."  A  similar  rule  was  adopted  in  Missouri,3  in  which  it  was 
held  that  where  delay  in  making  demand  is  contemplated  by 
the  express  terms  of  an  obligation  payable  on  demand,  there  is  no 
rule  of  law  which  requires  that  the  demand  be  made  within  the 
statutory  period  for  bringing  an  action.  Thus,  where  an  obliga- 
tion for  the  payment  of  money  one  day  after  date  contained  a 
condition  that  if  the  payee  should  demand  payment  during  her 
natural  life,  it  should  be  due  and  payable ;  but  in  case  of  her  death 
before  any  or  all  of  the  debt  should  be  paid,  it  should  not  be  paid 
at  all,  it  was  held  that  a  demand  made  by  the  payee  more  than 
ten  years  after  the  date  of  the  paper  was  in  time,  and  that  an 
action  brought  immediately  thereafter  was  not  barred  by  limi- 
tation, (a) 

SEC.  125.  Notes  or  Bills  payable  "  after  Demand,"  "  after  Sight," 
&c. — A  note  or  bill  made  payable  "after  demand,"  "after 
sight,"  is  not  payable  until  demand  is  made  for  payment.4  If 
a  note  or  bill  is  made  payable  twelve  months  after  demand,  the 

1  Sweet  v.  Irish,  36  Barb.  (N.  Y.)  467. 
3 See  Hartland  v.  Jukes,  1  II.  &  C.  667. 
3Jameson  v.  Jameson,  72  Mo.  640. 
4  Supra,  %  118. 

(a)  A  check  drawn   upon  a  bank  is  a  check  the  statute  of  limitations  begins 

bill  of  exchange  under  the  Illinois  stat-  to  run  at  the  latest  upon  the  expiration 

ute,    by    which    suit   must   be   brought  of  a  reasonable  time  for  presenting  the 

within    five    years    after    the    cause  of  check   for  payment.     Scroggin  v.   Mc- 

m  accrues.     Rogers  v.  Durant,  140  Clelland(Neb.),  22  L.  R.  Ann.  no,  and 

I7.S,2gS;  Garrettson  v.  North  Atchison  note. 
Bank,  47  Fed.  Rep.  S67.     Upon  such  a 


§  1 25.]  BILLS,    NOTES.    CHECKS.    ETC  323 

statute  does  not  begin  to  run  until  the  expiration  of  that  period 
after  demand,  as  the  debt  does  not  mature  or  become  enforceable 
until  that  time; J  and  the  same  rule  prevails  as  to  notes,  etc.,  pay- 
able "after  notice."2  Notes  or  bills  payable  "after  sight,"3 
or  "  on  sight,"  are  not  due  until  presented  for  payment ; 4  conse- 
quently, if  presented  for  payment  for  the  first  time  within  six 
years  before  action  brought,  the  statute  docs  not  bar  them, 
although  more  than  the  statutory  period  has  elapsed  before  pre- 
sentment. In  Michigan  and  Pennsylvania  the  courts  of  law, 
following  the  rule  in  equity  as  to  laches,  held  that,  unless  the 
statute  is  put  in  motion  by  a  demand,  within  the  period  requisite 
to  bar  the  action  if  it  matured  at  its  date,  the  right  to  make  the 
demand,  and  consequently  the  right  of  action  itself,  will  be 
barred.  In  Ohio5  it  is  held  —  and  this  sems  to  be  a  consistent 
rule  —  that  in  all  cases  where  a  demand  is  necessary  as  a  pre- 
requisite to  an  action,  and  no  demand  in  fact  is  shown,  it  will, 
in  the  absence  of  special  circumstances,  be  presumed  to  have 
been  made  at  the  expiration  of  the  period  within  which  the 
statute  would  have  run  upon  the  claim  if  it  had  been  due  from 
its  date,  and  the  statute  is  then  set  in  motion.  But,  if  the 
creditor  makes  a  demand  in  fact  within  the  last-named  period, 
the  running  of  the  statute  would  start  afresh  from  the  time  of 
such  demand ;  and  where  the  statute  is  put  in  motion  by  the 
operation  of  a  presumption,  it  is  not  arrested  except  by  circum- 
stances which  destroy  or  overcome  the  force  of  the  presumption.6 

1  Wenman  v.  Mohawk  Ins.  Co.,  13  Wend.  (N.  Y.)  267;  Wright  v.  Hamilton,  2 
Bailey  (S.  C.)  51 ;  Thorpe  v.  Coombe,  8  D.  &  R.  347;  Taylor  v.  Witman,  3  Grant's 
Cas.  (Penn.)  138;  Cadman  v.  Rogers,  10  Pick.  (Mass.)  120;  Richman  v.  Rich- 
man,  S  N.  J.  L.  114;  Holmes  v.  Kerrison,  2  Taunt.  323;  Little  v.  Blunt,  9  Pick. 
(Mass.)  488.  A  note  payable  "  on  sight  "  is  not  payable,  and  the  statute  does 
not  run  thereon  until  after  demand.     Wolfe  v.  Whiteman,  4  Harr.  (Del.)  246. 

2  Clayton  v.  Gosling,  5  B.  &  C.  360. 

3  Holmes  v.  Kerrison.  2  Taunt.  323. 

4  Wolfe  v.  Whiteman,  supra. 

5  Keithler  v.  Foster,  22  Ohio  St.  27. 

6  As  to  presumptions  in  reference  to  demands,  see  supta,  §  118,  When  Demand 
in  necessary,  etc.  In  all  cases  where  a  demand  is  necessary  before  a  note 
becomes  due  and  payable,  it  is  held  that  such  demand  must  be  made  within  the 
period  of  limitation.  Craft  v.  Thomas,  123  Ind.  513;  Landes  v.  Saxton  (Mo.), 
16  S.  W.  912.  In  Dougherty  v.  Wheeler,  125  Ihd.  421,  it  was  held  that  where  a 
speedy  demand  or  notice  to  pay  would  manifestly  violate  the  purpose  of  the 
contract  by  which  the  creditor  stipulated  to  extend  a  reasonable  time,  or  where 
delay  in  making  demand  was  contemplated  by  the  express  terms  of  the  contract, 


324  STATUTES   OF   LIMITATION.  [CHAP.   XII. 

That  a  demand  should  be  made  within  a  reasonable  time,  appears 
from  the  dicta  of  many  cases;  but  there  are  none,  except  those 
from  Pennsylvania  and  Michigan,  in  which  a  right  of  action  has 
been  denied  because  of  delay  in  making  demand,  although  in  a 
recent  case :  there  had  been  a  delay  of  nearly  twenty  years,  (a) 
As  to  what  is  a  reasonable  time  in  which  to  make  a  demand 
depends  upon  the  circumstances  of  each  particular  case,  and  is 
one  of  fact  for  the  jury;2  and  the  doctrine  prevailing  in  equity 
as  to  stale  demands  has  no  force  in  a  court  of  law,  and  a  strictly 
legal  right  cannot  there  be  denied  simply  because  it  is  old.  If 
a  note  or  bill  is  given  payable  upon  a  contingency,  as  "  one  day- 
after  "  the  happening  of  a  certain  event,  the  statute  is  not  put 
in  motion  until  the  day  after  such  event  transpires.3  In  all  cases 
where  the  word  "  months  "  is  used  in  statutes  of  limitation  or 
in  contracts,  unless  otherwise  provided  by  statute,  lunar  months 
is  intended;4  and  a  note  dated   Feb.    29,    1868,  payable  twelve 

a  demand  need  not  be  made  within  the  statutory  period.  In  all  cases  if  a 
demand  is  made  the  statute  will  begin  to  run  from  the  time  of  such  demand. 
Colburn  v.  Monroe  Baptist  Church,  60  Mich.  198,  Miller  v.  Hinds  County,  68 
Miss.  8S. 

]  Brown  v.  Rutherford.  14  Ch.  D.  687. 

•  Wallace  v.  Agry,  4  Mason  (U.  S.)  336. 

3  Hathaway  v.  Patterson,  45  Cal.  294. 

4  In  Hutton  v.  Brown,  45  L.  T.  Rep.  N.  S.  343,  this  question  arose  under  a 
lease  of  furniture  for  twenty-six  months.  Fry,  J.,  said:  "  The  question  is 
whether,  in  this  contract  for  letting  chattels  for  twenty-six  months,  the  word 
'  months'  means  calendar  or  lunar  months.  Now,  in  Simpson  v.  Margitson,  11 
Q.  B.  23,  Lord  Denman  said,  p.  31:  '  It  is  clear  that  "  months  "  denotes  at  law 
"  lunar  months,"  unless  there  is  admissible  evidence  of  an  intention  in  the 
parties  using  the  word  to  denote  "  calendar  months."  If  the  coniext  shows 
that  calendar  months  were  intended,  the  judge  may  adopt  that  construction.' 
Here  the  context  throws  no  light  on  the  meaning,  except  that  the  contract  for 
weekly  payments,  I  think,  implies  that  lunar  rather  than  calendar  months  are 
meant,  in  spite  of  Mr.  Wilkinson's  elaborate  calculations.  Then  it  is  said  that 
in  mortgage  transactions  months  are  always  calendar  months,  and  that  this  is 
a  mortgage  transaction.  But  the  rule  as  to  mortgages  only  arises  from  this, 
that  the  interest  on  mortgage  money  is  a  fixed  yearly  sum,  and  therefore  half 
a  year's  interest  is  for  six  calendar  months.  I  cannot  expand  this  into  a  mort- 
gage transaction.  The  primary  transaction  is  not  a  mortgage  at  all ;  it  is  simply 
a  contract  for  the  hire  of  furniture.  I  therefore  hold  that  the  word  '  months  ' 
means  '  lunar  '  months."     See  supra,  £  55. 

[a)  See  this  question   considered  and  Iowa,  162;  New  England  F.  Ins.  Co.  v. 

the  authorities  reviewed  in  Campbell  t.  Haynes,  71  Vt.  306;  2  Ames'  Cases  on 

Whoriskey,    170  Mass.   63,   65,  quoted  Bills  and  Notes,  291. 
supra    .'   ii-nT/i;    Leonard  v.  Olson,  99 


§  12$.]  BILLS,    NOTES,    CHECKS,    ETC.  325 

months  after  date,  becomes  due  Feb.  27,  1869,  and  an  action 
commenced  March  1,  1873  (the  statutury  period  being  three 
years),  is  too  late,  even  though  the  last  day  of  February  was  Sun- 
day.1 A  note  payable  "  at  any  time  within  two  years  "  does  not 
become  payable  until  the  expiration  of  two  years,  unless  the 
holder  elects  to  demand  the  same  before  that  time,  and  the  statute 
does  not  begin  to  run  thereon  until  the  two  years  are  ended, 
unless  the  holder,  before  that  time  (as  he  may),  puts  the  statute 
in  motion  by  a  demand.2  The  statute  begins  to  run  against  the 
holder  of  a  bill  of  exchange  upon  protest  and  notice  for  non- 
acceptance,  although  the  bill  is  not  then  due,  and  he  does  not 
acquire  a  fresh  right  of  action  on  the  non-payment  to  the  bill 
when  due.3  His  right  of  action  becomes  complete  and  perfect 
from  the  time  of  non-acceptance,4  and  the  statute  begins  to  run 
from  that  time.5 

1  Hibernia  Bank  v.  O'Grady,  47  Cal.  579.  See  Hathaway  v.  Patterson,  45 
Cal.  294;  Morris  v.  Richards,  45  L.  T.  N.  S.  210. 

2  Creighton  v.  Rosseau,  1  Iowa,  133. 

3  In  Whitehead  v.  Walker,  9  M.  &  W.  505,  to  an  action  of  assumpsit  by  a 
fourth  indorsee  of  a  foreign  bill  of  exchange  against  the  first  indorser,  alleging 
non-payment  by  the  drawee,  the  defendant  pleaded  that  before  the  debt  became 
due,  and  after  the  indorsement  lo  the  third  indorsee,  and  before  the  indorse- 
ment to  the  plaintiff,  the  bill  was  refused  acceptance  and  was  protested,  of 
which  the  third  indorser  and  the  plaintiff  at  the  time  of  the  indorsement  to  the 
plaintiff  had  notice,  and  that  the  defendant  did  not  have  due  notice  of  the  non- 
acceptance.  To  a  demurrer  to  this  plea  a  replication  of  de  injuria  was  held 
good.  Parke,  B.,  said:  "  The  plaintiffs,  indeed,  are  not  the  indorsees  who  pre- 
sented the  bill,  but  they  are  averred  to  have  taken  the  bill  with  notice  of  the 
fact  of  presentment  and  dishonor,  and  therefore  stand  in  the  same  situation, 
and  are  not  to  be  considered  as  having  a  title  as  innocent  indorsees.  Dunn  v. 
O'Keefe,  5  M.  &  S.  282.  The  practical  importance  of  the  point  in  the  present 
case  arises  from  the  delay  of  the  holder  in  bringing  his  action.  We  are  of 
opinion  that  the  contract  entered  into  by  the  drawer  is  not  such  as  is  contended 
for  by  the  plaintiff,  and  that  he  in  fact  enters  into  one  contract  only;  namely, 
in  the  case  of  a  bill  made  payable  after  sight,  that  the  drawee  shall,  on  the  bill 
being  presented  to  him  in  a  reasonable  time  from  the  date,  accept  the  same, 
and  having  so  accepted  it,  shall  pay  it  when  duly  presented  for  payment  accord- 
ing to  its  tenor;  and  in  the  case  of  a  bill  payable  after  date,  that  the  drawee 
shall  accept  it  if  it  is  presented  to  him  before  the  time  of  payment,  and  having 
so  accepted  it,  shall  pay  it  when  it  is  in  due  course  presented  for  payment;  or 
if  it  is  not  presented  for  acceptance  at  all,  then  that  he  should  pay  it  when  duly 
presented  for  payment." 

4  Miller  v.  Hackley,  5  Johns.  (N.  Y.)  375;  Weldon  v.  Buck,  4  id.  144. 

6  The  general  rule  is,  that  although  the  holder  of  a  bill  of  exchange  is  not 
bound  to  present  it  for  acceptance,  yet  if  he  thinks  fit  to  do  so,  and  acceptance 
is  refused,  he  is  bound  to  give  notice  of  that  fact  to  all  the  parties  to  the  bill  to 


326  STATUTES   OF   LIMITATION.  [CHAP.   XII. 

SEC.  126.  Notes  and  Bills  payable  by  Instalments.  —  Where  a 
note  or  bill  is  made  payable  by  instalments,  the  statute  attaches 
to  and  begins  to  run  upon  each  instalment  as  it  becomes  due,1 
and,  according  if  a  bill  or  note  is  made  payable  by  instalments, 
with  a  provision  that  if  one  instalment  fail  the  whole  sum  shall 
thereupon  become  due,  the  statute  will  commence  to  run  upon 
the  entire  debt  from  the  date  of  such  default.2  If  argued  that 
this  is  at  variance  with  the  rule  that  no  one  is  obliged  to  take 
advantage  of  a  forfeiture,  it  would  seem  that  the  debtor  by  his 
default  put  himself  in  a  position  where  his  creditor  might,  if  he 
so  elected,  treat  the  whole  debt  as  due;  but  it  seems  unreason- 
able to   say  that   he  thereby  compels  the  creditor  to   treat  the 

whom  he  desires  to  resort  for  payment.  Molloy,  de  Jure  Marilimo,  b.  2,  c.  10; 
Chitty  on  Bills,  272  (9th  ed.);  Bayley  on  Bills,  252.  And  after  presentment  for 
acceptance  and  refusal,  a  right  of  action  vests  immediately,  and  the  holder  need 
not  again  present  the  bill  for  acceptance.  Hickling  v.  Hardey,  7  Taunt.  312;  1 
Moore,  61,  Or  if  he  does  so,  and  acceptance  is  again  refused,  he  is  not  bound, 
if  payment  be  also  afterwards  refused,  to  protest  it  for  non-payment.  De  la 
Torre  v.  Barclay,  1  Stark.  7.  For  by  the  refusal  of  acceptance  he  acquires  a 
complete  cause  of  action  against  the  drawer  and  the  indorsers.  Starke  v. 
Cheeseman,  1  Ld.  Raym.  538;  1  Salk.  128.  The  liabilities  of  all  the  parties  to 
the  bill  are  to  be  determined  then,  and  all  who  take  the  bill  subsequently  to 
the  non-acceptance  and  protest,  take  it  with  all  its  infirmities.  Crossley  v.  Ham> 
13  East,  498.  Unless,  indeed,  in  the  case  of  a  subsequent  holder  for  value  who 
takes  it  without  notice  of  the  dishonor.  It  follows  from  these  principles  of  law, 
that  another  new  cause  of  action  cannot  afterwards  arise  on  the  non-payment 
of  the  bill;  if  it  could,  then  a  recovery  in  an  action  brought  on  the  non-accept- 
ance would  be  no  bar  to  a  subsequent  action  against  the  same  party  on  the 
non-payment.  The  drawing  of  a  bill  of  exchange  is  the  creation  of  a  debt:  it  is 
evidence  of  an  existing  debt  from  the  drawer  to  the  payee.  Starke  v.  Cheese- 
man,  supra;  Macarty  v.  Barrow,  2  Stra.  949;  Bishop  v.  Young,  2  B.  &  P.  83; 
Workman  v.  Leake,  Cowp.  22.  The  existence  of  the  two  concurrent  causes  of 
action  against  the  same  party  arising  out  of  the  same  contract  is  repugnant  to 
legal  principles. 

1  Bush  v.  Stowell,  71  Penn.  St.  20S.  In  Burnham  1.  Brown,  23  Me.  400; 
Evans's  Pothier,  404;  Heywood  v.  Peirin,  10  Pick.  (Mass.)  22S;  Tucker  v.  Ran- 
dall, 2  Mass.  283;  Eastabrook  v.  Moulton,  8  Mass.  258,  the  rule  was  thus  forcibly 
expressed;  where  a  note  is  made  payable  in  several  annual  payments,  the  cause 
of  action  for  the  first  payment  accrues  as  soon  ns  it  becomes  payable,  and  the 
statute  begins  to  run  against  from  that  time,  and  not  from  the  time  when  the 
latest  sum  becomes  due.  The  statute  does  not  begin  to  run  on  a  deposit  note 
given  by  a  member  of  a  mutual  insurance  company,  whereby  he  agrees  to  pay 
a  sum  certain,  or  any  part  thereof,  "  when  required,"  and  which  by  its  terms  is 
a  part  of  the  absolute  funds  of  the  company  until  an  assessment  is  laid.  Bige- 
low  v.  Libby,  117  Mass.  359. 

•  Hemp  v.  Garland,  4  Q.  B.  b1')- 


§  127- ]  BILLS,    NOTES,    CHECKS,    ETC.  327 

whole  debt  as  due,  so  that  the  statute  is,  even  against  the  credit- 
or's will,  put  in  motion  to  defeat  his  claim.  This  case  seems  to 
favor  forfeitures,  which  are  usually  held  odious  in  law.  *  (#) 

In  the  case  of  interest  payable  annually,  while  it  is  held  that  an 
action  may  be  maintained  therefor  at  the  end  of  each  year, 
although  the  principal  debt  is  not  due,  yet,  with  singular  incon- 
sistency, it  is  held  that,  upon  the  ground  that  the  principl  carries 
with  it  all  accessories,  the  statute  does  not  begin  to  run  upon 
any  part  of  the  interest  until  the  principal  debt  matures.2  But 
there  are  respectable  authorities  which  hold  that  the  statute 
begins  to  run  as  to  interest  upon  notes,  where  the  interest 
becomes  due  and  payable  before  the  principal  debt,  from  the 
time  when  it  becomes  due.3 

Where  coupons  are  given  for  interest,  the  statute  begins  to 
run  thereon  from  the  date  of  their  maturity,  whether  they  are 
detached  from  the  instrument  on  which  the  interest  accrued  or 
not,  as  each  of  them  is  a  negotiable  instrument  and  evidence  of 
a  distinct  and  independent  debt.4 

In  the  case  of  a  note  payable  with  interest  annually,  a  voluntary 
payment  of  the  interest  operates  to  keep  the  principal  debt  on 
foot,  because  it  amounts  to  an  acknowledgment  of  it  as  still 
subsisting,  and  affords  a  ground  for  an  implied  promise  to  pay 
it;5  but  the  recovery  of  the  interest  in  an  independent  action 
brought  therefor  does  not  have  that  effect,  because  the  payment 
is  involuntary  and  repels  rather  than  sustains  any  implied 
promise  to  pay  the  debt  from  which  the  interest  arose.6 

Sec.  127.  Coupons,  Interest  Warrants,  &c.  —  The  statute  of 
limitations  begins  to  run  against  coupons  or  interest  warrants 
from  the  time  they  respectively  mature ;   and    this    is  so  even 

1  See  also  Banning  on  Limitations,  26. 

2  Grafton  Bank  v.  Doe,  19  Vt.  463;  Henderson  v.  Hamilton,  1  Hall  (N.  Y.)  314; 
Ferry  v.  Ferry,  2  Cush.  (Mass.)  92.  That  an  action  lies  as  fast  as  the  interest 
accrues  due,  and  see  Stearns  v.  Brown,  1  Pick.  (Mass.)  530;  Greenleaf  v.  Kel- 
logg, 2  Mass.  568;  Cooley  v.  Rose,  3  id.  221. 

3  Hey  wood  v.  Perrin,  10  Pick.  (Mass.)  228;  Bush  v.  Stowell,  71  Penn.  St.  208; 
Burnham  v.  Brown,  23  Me.  400;  Eastabrook  v.  Moulton,  9  Mass.  258. 

4  See  infra,  §  127,  Coupons,  etc. 

6  Green  v.  Greensboro  College,  83  N.  C.  440. 

6  Morgan  v.  Rowlands,  supra;  Harding  v.  Edgecombe,  28  Q.  B.  Ex. 

(a)  The  doctrine  of  Hemp  v.  Garland  was,  however,  approved  in  Reeves  v. 
Butcher,  [1891]  2  Q.  B.  509. 


328  STATUTES   OF    LIMITATION.  [CHAP.    XII. 

though  they  are  not  detached  from  the  bond  which  represents, 
the  principal  debt.1  Such  instruments  are,  if  payable  to  bearer, 
negotiable,  and  a  right  of  action  accrues  upon  them  as  soon  as 
they  become  due  in  the  hands  of  any  person  who  is  the  legal 
bearer  of  the  same.2(V)  They  are  treated  as  promisory  notes 
negotiable  by  the  law  merchant.3 

When  payment  is  provided  for  out  of  a  particular  fund  to  be 
created  by  the  act  of  the  debtor,  he  cannot  plead  the  statute  of 
limitations  until  he  shows  that  that  fund  has  been  provided.4 

1  Amy  v.  Dubuque,  98  U.  S.  470,  same  rule  as  to  detached  coupons;  Clark  v. 
Iowa  City,  20  Wall.  (U.  S.)  583;  contra,  see  Lexington  v.  Butler,  14  Wall.  (U.  S.) 
282;  Kenosha  v.  Lamson,  9  id.  477.  Upon  coupons  made  payable  semi-annually, 
on  "  presentation  of  the  respective  coupons  hereto  attached,"  an  action  can  be 
brought  thereon  without  presentation,  although  they  need  not  be  paid  until 
delivered  up.     Warner  v.  Rising  Fawn  Iron  Co.,  3  Woods  (U.  S.)  514. 

2  Evertson  v.  Nat.  Bank  of  Newport,  66  N.  Y.  14. 

'Cooper  v.  Thompson,  13  Blatch.  (U.  S.)  434;  Bailey  v.  Lansing,  13  id.  424. 
The  rule  in  such  cases  is,  that,  unless  the  payor  has  put  it  out  of  his  power  to 
pay  in  the  kind  of  property  stipulated  for,  a  note  payable  in  specific  articles,  on 
demand,  does  not  become  due  until  demand  is  made;  but  when  a  demand  has 
been  made  and  the  payee  fails  to  pay,  the  payee  then  becomes  entitled  to  be 
paid  in  money.  See  Read  v.  Sturtevant,  40  Vt.  521.  In  Thrall  v.  Mead,  40  Vt. 
540,  a  note  dated  March  14,  1832,  made  "  payable  in  officer's  fees  as  constable," 
although  not  in  terms  expressed  to  be  payable  on  demand,  or  on  request,  was 
held  by  legal  construction  so  payable;  and  no  demand  having  been  made  until 
1S59,  it  was  held  that  the  note  was  barred.  Where  a  debt  is  payable  in  specific 
property,  a  new  contract  made  before  the  debt  has  become  payable,  changing 
the  mode  of  payment,  and  extending  the  time,  needs  no  new  consideration  for 
its  support. 

4  In  Lincoln  County  v.  Luning,  133  U.  S.  529,  an  action  was  brought  against 
the  county  to  recover  the  principal  and  interest  upon  certain  bonds  and  coupons 
issued  by  the  county.  By  the  statute  of  limitations  existing  at  that  time  in 
Nevada,  some  of  the  coupons  were  barred.  Bui  there  had  been  this  special 
legislation  in  reference  to  those  coupons:  The  bonds  were  issued  under  the 
funding  act  of  1873.  In  1877  the  county  was  delinquent  in  its  interest,  and  the 
legislature  passed  an  act  amendatory  to  the  act  of  1873.  This  amendatory  act 
provided  for  the  registering  of  overdue  coupons,  and  imposed  upon  the  treasurer 
thereafter  paying  the  coupons,  as  money  came  into  his  possession  applicable 
thereto,  in  the  order  of  their  registration.  The  coupons,  which  by  the  statute 
of  limitations  would  have  been  barred,  were  presented,  as  they  fell  due,  to  the 
treasurer  for  payment,  and  payment  demanded  and  refused  because  the  interest 

(</)  See  Edwards  ».  Bates  County.  163  promptly    paid,    the    exercise   of  such 

I '.  S.  269.      When  the  payment  of  bonds  option  causes  the  statute  of  limitations 

and    their    coupons    is    secured     by    a  to  then    begin  running  as  to  the  whole 

mortgage  or  deed  of  trust  by  which  the  debt.     Westcot't  v.  Whiteside  (Kansas). 

princip  il  debt  becomes  due  at  the  bond-  64  Pac.  1032. 
bo   lei   '  option,  if  the  coupons  are  not 


§  128.]  BILLS,    NOTES,    CHECKS,    ETC.  329 

Each  coupon  upon  a  bond,  municipal  or  otherwise,  is  a  com- 
plete instrument  capable  of  sustaining  separate  actions  without 
reference  to  the  maturity  or  ownership  of  the  bonds.1  It  seems 
that  interest  upon  these  coupons  is  collectible  from  the  time  when 
they  become  due.2  In  the  principal  case  3  the  court,  recognizing 
the  fact  that  many  courts  of  high  authority  disallow  interest 
upon  interest,  followed  that  rule ;  yet  it  expressed  its  approval 
of  the  doctrine  that  an  express  agreement  in  a  note  or  bond  to 
pay  interest  at  a  specified  time,  as  annually  or  semi-annually, 
entitled  the  holder  to  interest  upon  interest  from  the  time  it 
became  due.  For,  said  the  court,  when  a  person  agrees  to 
interest  at  a  specified  time,  and  fails  to  keep  his  undertaking, 
why  should  he  not  be  compelled  to  pay  interest  upon  interest  from 
the  time  he  should  have  made  the  payment;  if  he  undertakes  to 
pay  a  sum  in  a  given  time  to  the  owner,  and  makes  default,  the 
law  allows  interest  on  the  sum  wrongfully  withheld,  from  the 
time  he  should  have  made  such  payment.4 

Sec.  128.  Notes  payable  in  Specific  Articles.  —  Where  a  note  is 
made  payable  in  specific  articles  on  demand,  an  action  cannot 
be  maintained  thereon  until  a  demand  is  made  for  payment. 
Thus,  where  a  note  was  made  payable  "  in  produce  or  wood  from 

fund  was  exhausted.  Thereupon  the  treasurer  registered  them  as  presented, 
in  accordance  with  the  act  of  1877,  and  from  the  time  of  their  registration  to 
the  commencement  of  this  action  there  was  no  money  in  the  treasury  applicable 
to  their  payment.  Brewer,  J.,  said:  "  This  act  provided  for  registration  and 
for  payment  in  a  particular  order,  for  a  new  provision  for  the  payment  of  these 
bonds  which  was  accepted  by  the  creditor,  and  created  a  new  right  upon  which 
he  might  rely.  It  provided,  as  it  were,  a  special  trust  fund  to  which  the  coupon 
holder  might  in  the  order  of  registration  look  for  payment,  and  for  payment 
through  which  he  might  safely  wait.  It  amounted  to  a  promise  on  the  part  of 
the  county  to  pay  such  coupons  in  the  order  of  their  registration,  as  fast  as 
money  came  into  the  interest  fund,  and  such  promise  was  by  the  creditor 
accepted;  and  when  payment  is  provided  for  out  of  a  particular  fund  to  be 
created  by  the  act  of  the  debtor,  he  cannot  plead  the  statute  until  he  shows  that 
that  fund  has  been  provided."  Underhill  v.  Sonora,  17  Cal.  172;  Freehill  v. 
Chamberlain,  65  Cal.  603.     See  also  Nash  v.  El  Dorado  Co.,  24  Fed.  Rep.  252. 

1  Amy  v.  Dubuque,  98  U.  S.  470;  Com'rs  of  Knox  Co.  v.  Aspinwall,  21  How. 
(U.  S.)  539;    Koshkonong  v.  Burton,  104  U.  S.  668. 

2  Mills  v.  Jefferson,  20  Wis    50. 

3  133  U.  S.  529. 

4S°e  Walnut  v.  Wade,  103  U.  S.  683;  Genoa  v.  Woodruff,  92  U.  S.  902; 
Aurora  v.  West,  7  Wall.  82;  Gelpcke  v.  Dubuque,  1  id.  175;  Pruyn  v.  Mil- 
waukee, 18  Wis.  367. 


33°  STATUTES   OF   LIMITATION.  [CHAP.    XII. 

the  farm  on  demand  as  the  payee  may  want  to  use  the  same," 
it  was  held  that  a  lapse  of  twelve  years  without  a  demand  did 
not  bar  an  action  on  the  note,  in  the  absence  of  proof  when  as 
a  matter  of  fact  a  reasonable  time  for  making  the  demand 
expired,  or  of  facts  from  which  the  law  would  assume  a  limit  to 
such  reasonable  time; '  and  the  same  rule  was  adopted  in  a  case 
where  a  note  was  made  payable  in  "  bankable  paper  when 
wanted."3  But  if  a  note  is  payable  in  specific  articles,  and  the 
time  and  place  of  payment  is  fixed,  the  plaintiff's  right  of  action 
becomes  complete,  unless  the  payee  was  present  at  the  place  on 
the  day  fixed  for  payment,  ready  to  perform ;  in  all  other  cases, 
however,  a  demand  before  action  brought  is  necessary  to  put  the 
statute  in  motion.  The  rule  in  such  cases  is  that  unless  the  payor 
has  put  it  out  of  his  power  to  pay  in  the  kind  of  property  stipu- 
lated for,  a  note  payable  in  specific  articles  on  demand  does  not 
become  due  until  demand  is  made;  but  when  a  demand  has  been 
made,  and  the  payor  fails  to  pay,  the  payee  then  becomes 
entitled  to  be  paid  in  money.3 

SEC.  129.  Notes  subject  to  Assessment.  —  Where,  as  is  the  case 
with  notes  given  to  mutual  insurance  companies,  premium  notes 
are  given,  subject  to  assessment  by  the  company,  at  such  times 
and  in  such  sums,  not  exceeding  in  all  the  sum  for  which  the 
note  is  given,  but  not  payable  in  full,  at  all  events  the  statute 
does  not  attach  to  the  note  at  all,  until  an  assessment  is  made  by 
the  company  for  the  purposes  contemplated  and  a  demand  is 
made  therefor,  or  the  method  of  notice  provided  by  statute  has 
been  complied  with,  and  then  it  attaches  only  to  the  amount 
assessed,  and  begins  to  run  thereon  from  the  date  of  notice  or 
demand,  leaving  the  balance  unaffected  by  the  statute.4     But,  in 

1  Stanton  v.  Stanton,  37  Vt.  411. 

2  Harbor  v.  Morgan,  4  Ind.  158. 

3  Thus,  where  the  payee  of  a  demand  note,  payable  in  hemlock  bark,  payable 
Feb.  [9,  1863,  demanded  payment  in  the  summer  according  to  its  terms, 
requesting  the  defendant  to  have  the  bark  peeled  during  the  summer,  the  sea- 

for  peeling  bark,  and  delivered  the  next  winter,  usually  the  best  time  to 
draw  it,  all  which  the  defendant  agreed  should  be  done,  it  was  held  that  this 
demand  was  most  appropriate  to  such  a  note,  and  the  defendant  by  failing  to 
answer  it,  as  he  promised,  became  liable  to  pay  the  note  in  money.  Read  v- 
Sturtevant   4"  Vt.  521.     See  Thrall  v.  Mead,  40  Vt.  540. 

•Hops  Mut.  Ins.  Co.  v.  Perkins,  2  Abb.  App.  Dec.  (N.  Y.)  383;  Hope  Ins. 
'  Weed,  28  Conn.  51;   Howland   v.    Edmonds,   24  N.   Y.  307;   Howland  v. 


§  129,]  BILLS,    NOTES,    CHECKS,    ETC.  33 1 

case  the  statute  does  not  provide  the  manner  in  which  notice  of 
such  assessment  shall  be  given,  the  statute  does  not  begin  to  run 
thereon  until  demand  is  made  therefor.1  But  a  different  rule  is 
adopted  where  the  statute  provides  the  manner  in  which  notice 
of  the  assessment  shall  be  given,  and  the  statute  in  such  cases 
begins  to  run  from  the  time  when  notice  as  required  by  the 
statute  is  given.2  And  the  same  rule  prevails  as  to  guaranty 
notes,  or  notes  given  as  a  part  of  the  capital  of  the  company, 
assessable  as  the  directors  may  direct,  although  it  was  held  that 
where  such  notes  are  payable  at  all  events,  though  in  terms  pay- 
able at  such  times  and  in  such  portions  as  the  directors  may 
require,  they  are  yet  in  legal  effect  payable  on  demand.3  This 
is  upon  the  ground  that  the  statute  requires  all  such  notes  to  be 
made    payable    within    twelve   months,    consequently    they    are 

Cuykendall,  40  Barb.  (N.  Y.)  320;  Sands  v.  St.  John,  36  id.  628;  Savage  v. 
Medbury,  19  N.  Y.  32.  In  Sands  v.  Lilienthal,  46  N.  Y.  541,  it  was  held  thai 
where  a  premium  note  given  to  a  mutual  insurance  company,  which  has 
been  regularly  assessed  to  its  full  amount,  the  time  of  payment  fixed,  and 
notice  of  the  assessment  duly  published,  the  statute  begins  to  run  from  that 
date,  without  a  personal  demand.  See  In  re  Slater  Mut.  Fire  Ins.  Co.,  10  R. 
I.  42. 

1  Sands  v,  Annesley,  56  Barb.  (N.  Y.)  598;  Howland  v.  Cuykendall,  40  id.  320. 

8  Sands  v.  Lilienthal,  supra. 

3  Howland  v.  Edmonds,  24  N.  Y.  307;  Bell  v.  Yates,  33  Barb.  (N.  Y.)627; 
Sands  v.  St.  John,  36  id.  628;  Colgate  v.  Buckingham,  37  id.  177.  In  Western 
R.  Co.  v.  Avery,  64  N.  C.  491,  it  was  held  that  the  statute  begins  to  run  against 
an  action  upon  a  subscription  to  stock  of  a  corporation  as  to  each  instalment 
called  in,  from  the  time  the  directors  make  the  call.  In  Connecticut  a  doctrine 
apparently  different  was  held,  but  there  is  in  reality  no  conflict  of  doctrine.  In 
that  case,  a  note  was  given  in  terms  made  payable  in  twelve  months  from  its 
date;  but  it  is  also  made  subject  to  certain  conditions  of  the  defendant's  sub- 
scriplion  to  the  guarantee  fund  of  the  company,  of  the  date  named.  In  1854  an 
assessment  of  seventy-five  per  cent,  was  rendered  necessary,  and  was  properly 
made  upon  the  note.  The  defendant  insisted  that  the  note  became  due  abso- 
lutely in  twelve  months  from  its  date,  and  that  it  was  barred  by  the  statute. 
But  the  court  held  that  it  must  be  construed  in  connection  with  the  agreement 
and  that  by  its  terms  no  action  could  be  sustained  upon  it  until  an  assessment 
was  made  upon  it,  and  that  the  statute  did  not  begin  to  run  upon  any  part  of 
the  note  until  that  time.  In  this  respect,  the  case  differed  from  the  New  York 
cases,  and  cannot,  in  any  sense,  be  said  to  conflict  with  them.  See  nlso  Hope 
Mut.  Life  Ins.  Co.  v.  Taylor,  2  Robt.  (N.  Y.)  27S,  where  the  same  rule  is 
adopted.  There  were  no  statutory  provisions  in  Connecticut  requiring  such 
notes  to  be  made  payable  absolutely  within  twelve  months  from  date,  as  there 
were  in  New  York,  under  which  the  cases  from  that  State  were  decided.  Bell 
v.  Yates,  33  Barb.  (N.  Y.)  627;  Sands  v.  St.  John,  36  id.  628;  Howland  v. 
Edmonds,   supra. 


S32  STATUTES   OF   LIMITATION.  [CHAP.   XII. 

treated  as  due  absolutely  and  immediately,  and  that  the  statute 
begins  to  run  thereon  from  their  date.1^) 

Where  security  notes  are  given  to  a  joint-stock  insurance  com- 
pany which,  by  the  terms  of  its  charter,  are  to  become  its  abso- 
lute property,  the  statute  begins  to  run  thereon  from  the  time 
they  respectively  become  due.2  Where  a  right  to  assess  stock- 
holders of  a  corporation  of  any  kind  exists  by  statute,  the  statute 
only  begins  to  run  thereon  when  an  assessment  is  lawfully  made.3 

SEC.  130.  Bill  of  Exchange  payable  at  Particular  Place.— 
Where  a  bill  of  exchange  is  made  payable  at  a  particular  place, 
as  at  the  Granite  Bank  in  Boston,  it  does  not  become  due  and 
payable,  so  that  an  action  can  be  maintained  thereon,  until  after  a 
demand  at  that  place  and  its  dishonor  there;4  and,  "therefore," 
says  Story,  J.,  in  the  case  last  cited,  "the  statute  of  limitations 
begins  to  run  from  the  time  of  such  demand,  and  not  from  the 
time  when  the  bills  were  payable  according  to  their  tenor." 
The  liability  of  the  drawer  of  a  bill  of  exchange  to  a  subsequent 
indorser  dates  from  the  dishonor  of  the  bill,  and  not  from  the 
time  when  the  indorser  paid  it.5 

SEC.  131.  Bills  accepted  after  Maturity.  —  As  a  bill  of  exchange 
may  be  accepted  after  it  is  overdue,6  there  can  be  no  doubt  that 
the  statute  begins  to  run  thereon  from  the  date  of  its  acceptance, 
although  this  precise  question  does  not  seem  to  have  been 
decided.7  But  in  the  case  of  a  note  dated  January  1,  but  not 
delivered  until  July  1,  the  statute  was  held  to  run  thereon  from 
the  day  of  its  issue,  and  not  from  the  day  of  its  date;8  but   in 

1  Hope  Mut.  Life  Ins.  Co.  v.  Weed,  28  Conn.  51. 

2  Osgood  v.  Strauss,  55  N.  Y.  672. 

3  Com.  v.  Cochituate  Bank,  3  Allen  (Mass.)  42. 

4  I'icquet  v.  Cartis,  1  Sumner  (U.  S.;  47S.  See  Rowe  v.  Young,  2  B.  &  B.  165. 
This  also  is  the  rule  in  France,  art.  123,  Code  of  Commerce;  also  arts.  173  and 
174,  according  to  Story,  J.,  in  the  foregoing  case. 

Mlunu.  Taylor,  108  Mass.  508. 

6  Williams  v.  VVinans,  14  N.  J.  L.  339;  Spaulding  v.  Andrews,  48  Penn.  St. 
411. 

1  Benjamin's  Chalmer's  Digest,  art.  252,  subd.  2. 
"  £  ivage  v.  Aldren,  2  Stark.  232. 

{a)  In    Equitable    Marine  Ins.  Co.  :•.  running  of  limitation  thereon  was  not 

Aimis,  173  Mass.  436,  it  was  held  that  accelerated  because  the  insurer  might 

where  ;i  premium   note  was  made  pay-  have   cancelled    the    policy    before    the 

abl     "1  wo  months  after  risk  ends,"  the  risk  ended. 


§   132.]  BILLS,    NOTES,    CHECKS,    ETC.  333 

this  case  the  note  was  payable  on  demand,  and  was  delivered  to 
a  third  person  in  escrow  until  certain  conditions  had  been  com- 
plied with.1 

While  the  rule  as  stated  might  prevail  as  to  notes  payable  on 
demand  or  as  to  bills  indorsed  when  overdue,  such  is  not  the 
rule  as  to  the  indorsement  of  a  note  by  a  third  person  payable  at 
a  fixed  time  after  it  becomes  due.  In  the  latter  case,  the  statute 
runs  from  the  time  when  the  note  became  due;  and  the  indorse- 
ment, instead  of  creating  a  new  contract  so  as  to  start  the  run- 
ning of  the  statute  afresh  from  that  date,  is  merely  accessary  to 
the  old  contract,  and  does  not  suspend  or  in  any  wise  affect  the 
operation  of  the  statue  on  the  note.2  But  the  maker  of  the  note 
may  revive  it  by  indorsing  his  name  on  the  back  thereof  after  the 
statute  has  run  upon  it.  Thus,  the  maker  of  a  note,  twenty 
years  after  its  maturity,  signed  his  name  on  the  back  of  it,  and  it 
was  held  that  an  action  lay  against  him  on  the  note  at  any  time 
within  six  years  from  the  date  of  such  indorsement,3  as  such 
indorsement  operated  as  an  acknowledgment  in  writing  that  the 
debt  is  due  and  payable,  and  also  to  a  new  promise  to  pay  it.4 

SEC.  i  32.  Bills  and  Notes  subject  to  Grace.  —  Where  a  bill,  note, 
or  other  obligation  is  subject  to  grace,  the  statute  begins  to  run 
thereon  only  from  the  last  day  of  grace.5     But,  the  mercantile 

1  Hill  v.  Henry,  17  Ohio,  9,  where  a  married  woman,  being  administratrix, 
received  a  sum  of  money  in  that  character,  and  lent  the  same  to  her  husband, 
and  took  in  return  for  it  the  joint  and  several  promissory  notes  of  her  husband 
and  two  other  persons,  payable  to  her  with  interest,  the  note  dated  Nov.  20, 
1817,  and  the  husband  died  in  1827,  and  after  his  death,  to  an  action  brought  by 
her  against  the  other  parties  lo  the  note,  they  set  up  the  statute  of  limitations 
in  bar  of  the  action,  the  court  held  that,  although  she  could  not  maintain  an 
action  on  the  note  during  her  husband's  lifetime,  yet,  after  bis  death,  being  for 
a  good  consideration,  it  was  a  chose  in  action  surviving  to  the  wife,  and  that 
she  might  maintain  an  action  thereon  at  any  time  within  six  years  from  the 
time  of  his  death.      Richards  v.  Richards,  2  B.  &  Ad.  447. 

a  Scarpellini  v.  Atcheson,  7  Q.  B.  864.  See  Webster  v.  Kirk,  17  id.  944,  where 
it  was  suggested  that,  as  to  the  statute  of  limitations,  under  such  circumstances, 
the  holder  for  the  time  being  might  be  treated  as  a  trustee  of  the  action;  so 
that  prior  or  subsequent  indorsees  are,  as  between  themselves  and  earlier 
parties,  prejudiced  by  his  laches. 

3  Bourdin   v.  Greenwood,  L.  R.  13  Eq    281. 

*  See  Chasemore  v.  Turner,  L.  R.  10  Q.  B.  500;  In  re  River  Steamer  Co.,  L. 
R.  6  Ch.  S22,  as  to  the  requisites  of  an  acknowledgment  in  writing. 

6  Pickard  v.  Valentine,  13  Me.  412;  Kimball  v.  Fuller,  13  La.  An.  602.  See 
Tas^ell  v.  Lewis,  1  Ld.  Raym.  743.  An  action  brought  upon  a  note  or  bill  upon 
the  day  it  becomes  due  is  premature.     Skidmore  v.   Little,   4  Tex.   301;   Wil- 


334  STATUTES    OF    LIMITATION.  [CHAP.    XII. 

usage  in  the  matter  of  grace,  having  the  effect  of  law,  where  a 
bill  or  note  falls  due  on  Sunday,  it  is  treated  as  due  on  the  previ- 
ous Saturday,  and  the  statute  begins  to  run  from  that  time.1 
Where  a  note  was  given  dated  Feb.  27,  1869,  payable  twelve 
months  after  date,  it  was  held  that  it  fell  due  Feb.  27,  1870;  and 
that  an  action  commenced  on  it  March  1,  1873,  was  too  late  to 
save  the  note  from  the  operation  of  the  statute  although  the  last 
day  of  February,  1869,  was  Sunday.3 

Sec.  133..  Notes  Payable  upon  the  happening  of  a  Contigency.  — 
A  note,  made  payable  upon  the  happening  of  a  certain  event  and 
containing  such  a  clause  as  this:  "or  as  soon  as  otherwise  con- 
venient," is  payable  in  a  reasonable  time;  and  if  the  maker  makes 
a  payment  thereon  within  a  certain  time,  as  within  sixty  days 
from  its  date,  the  parties  will  thereby  be  treated  as  having  fixed 
upon  that  as  a  reasonable  time,  and  the  statute  will  begin  to  run 
on  the  note  from  that  time.3  If,  however,  there  are  no  qualify- 
ing words,  but  a  certain  event  or  contingency  is  absolutely  fixed 
upon,  the  statute  will  not  begin  to  run  until  the  event  or  con- 
tingency occurs.4 

combe  v.  Dodge,  3  Cal.  260;  and  if  the  note  is  entitled  to  grace,  an  action  on  the 
last  day  of  grace  is  also  premature.  Smith  v.  Aylesworth,  40  Barb.  (N.  Y.)  104; 
Oothout  v.  Ballard,  41  id.  33.  The  maker  has  the  whole  of  the  last  day  of  grace 
to  pay  the  note  in  Taylor  v.  Jacoby,  2  Penn.  St.  495;  Wiggle  v.  Thomason,  11 
S.  &  M.  (Miss.)  452;  Lunt  v.  Adams,  17  Me.  230.  But  in  Maine  it  is  held  that 
an  action  may  be  commenced  on  the  last  day  of  grace  if  there  has  been  a 
demand  made,  or  if  the  note  is  payable  al  a  bank,  and  the  suit  is  commenced 
after  banking  hours.  Veazie  Bank  v.  Winn,  40  Me.  62;  Vandesande  v.  Chap- 
man, 48  Me.  262.  This  is  not  the  general  rule,  and  the  cases  generally  make 
no  distinction  in  this  respect,  because  a  note  is  payable  at  a  bank.  Smith  v. 
Aylesworth,  supra;  Oothout  v.  Ballard,  supra.  In  South  Carolina  a  person  may 
be  sued  on  a  note  or  bill  on  the  last  day  of  grace.  McKenzie  v.  Durant,  9  Rich. 
(S.  C.)  61;  Wilson  v.  Williams,  4  N.  &  McCord  (S.  C.)  440.  As  to  notes  or  bills, 
and  the  time  when  a  right  of  action  accrues  against  an  indorser,  an  action  will 
not  lie  against  him,  nor  against  a  drawer  of  a  bill,  until  every  preliminary  step 
has  been  taken  necessary  to  fix  his  liability  absolutely.  Green  v.  Darling,  15 
Me.  139.  If  he  lives  in  the  same  town  or  city,  an  action  will  not  lie  until  notice 
of  protest  is  actually  served,  New  England  Bank  v.  Lewis,  2  Pick.  (Mass.)  125; 
whereas  if  he  lives  in  another  town,  an  action  lies  after  the  notice  is  mailed. 
Shed  v.  Brett,  1  Pick.  (Mass.)4oi;  Stanton  v.  Blossom,  14  Mass.  Ilfi;  Flint  v. 
Rogers,  15  Me.  67. 

1  Morris  v.  Richards,  45  L.  T.  N.  S.  210. 

'  Hibernia  Bank  v.  O'Grady,  47  Cal.  579. 

3  Jones   v,  Eisler,  3  Kan.  134. 

'Gueno  v.  Soumastre,  1  La.  Ann.  44. 


§  1 34-]  BILLS,    NOTES,    CHECKS,    ETC.  335 

An  accommodation  indorser,  or  one  who  indorses  for  the 
maker  without  any  consideration,  cannot  recover  of  the  maker 
except  upon  the  note;  consequently  as  to  him  the  statute  begins 
to  run  from  the  time  the  note  became  due,  and  not  from  the 
time  of  its  payment  by  him;1  and  although  he  paid  the  note 
before  the  statute  had  run  thereon,  yet  if  more  than  six  years 
have  elapsed  between  the  time  the  note  became  due  and  the  com- 
mencement of  the  action,  he  cannot  recover  of  the  maker.  In 
other  words,  his  relation  to  the  note  by  its  payment  is  simply  the 
same  that  the  holder  held  thereto,  and  he  can  enforce  no  right 
against  the  maker  which  the  holder  could  not  enforce.2  But  in 
the  case  of  an  accommodation  acceptor,  it  is  held  that  the  statute 
begins  to  run  from  the  time  he  pays  the  bill,  and  not  from  the 
time  when  it  became  due.3 

SEC.  134.  Indorser  of  Notes  or  Bills.  —  The  indorsement  of  a 
bill  after  it  is  dishonored  creates  a  new  contract  as  to  the  indorser 
and  indorsee.  Thus,  if  A.  is  the  holder  of  a  dishonored  bill,  and 
three  years  afterwards  he  indorses  it  to  B.,  while  the  indorser 
must  sue  the  acceptor  within  six  years  from  the  time  when  the 
bill  matured,  yet  he  has  six  years  from  the  date  of  the  indorse- 
ment in  which  to  sue  A.4  The  reason  is  that  the  indorsement  is 
a  contract  to  pay  the  bill  if  the  acceptor  does  not;  and,  as  it 
creates  a  new  contract  as  between  him  and  the  indorser,  it  out- 
lives the  bill  as  to  the  other  parties,  and  the  statute  only  begins 
to  run  from  the  date  of  indorsement,  because  that  is  the  time 
when  the  right  of  action  accrues  against  the  indorser.5  (a) 

No  cause  of  action  arises  against  an  indorser  of  a  promissory 
note  payable  on  demand,  at  a  place  specified,  until  demand  is 
made   in    compliance  with  the  terms  of   the   contract   and   due 

1  Williams  v.  Durst,  25  Tex.  667. 

'Williams  v.  Durst,  supra;  Kennedy  v.  Carpenter,  2  Whart.  (Penn.)  344; 
Hoyl   v..  Reed,  2  Blackf.  (Ind.)  369. 

3  Reynolds  v.  Doyle,  2  Scott  N.  R.  45.  In  Bullock  v.  Campbell,  9  Gill  (Md.\ 
182,  this  was  held  to  be  the  rule  in  the  case  of  an  accommodation  indorser. 

4  Benjamin's  Chalmer's  Digest,  256. 

6  Woodruff  v.  Moore,  8  Barb.  (N.  Y.)  171;  Whitehead  v.  Walker,  9  M.  &  W. 
506. 

(a)  As  every  indorsement  of  a  prom-  though  stopping  the  running  of  limita- 
issory  note  is  a  new  contract  the  rule  tion  as  to  him,  do  not  have  that  effect 
adopted  under  the  Missouri  staluies  is  as  to  the  indorser.  Maddox  v.  Dun- 
that   payments  thereon   by  the  maker,  can,  143  Mo.  613. 


336  STATUTES   OF   LIMITATION.  [CHAP.   XII. 

notice  of  non-payment;  a  demand  by  letter  is  insufficient.  The 
holder  of  the  note  is  not  chargeable  with  neglect  for  omission  to 
make  such  demand  within  a  particular  time.  Until,  therefore, 
demand  is  made  at  the  place  named,  the  statute  of  limitations 
does  not  begin  to  run  in  favor  of  the  indorser.1 

SEC.  135.  Acceptor  of  Bill. — The  statute  runs  .n  favor  of  the 
acceptor  of  a  bill  who  accepted  it  before  it  became  due,  from  the 
day  the  bill  becomes  payable,  and  not  from  the  date  of  the  accept- 
ance;2 but  if  a  blank  acceptance  is  given  to  a  person,  and  ten 
years  afterwards  he  fills  it  up  as  a  bill  payable  three  months  after 
date,  and  negotiates  it  to  a  bona  fide  holder,  the  statute  does  not 
begin  to  run  thereon  until  it  is  payable.3  If,  however,  a  bill  is 
accepted  after  it  is  due  the  statute  begins  to  run  from  the  date 
of  acceptance,  because  it  is  payable  instanter.* 

SEC.  136.  Drawer  of  Bill.  —  If  a  bill  of  exchange  drawn  pay- 
able sixty  or  any  other  number  of  days  after  sight,  is  presented 
for  acceptance  before  it  becomes  due,  and  is  dishonored  by  non- 
acceptance,  the  statute  begins  to  run  in  favor  of  the  drawer  from 
the  time  when  it  was  so  dishonored  and  notice  thereof  sent  to 
the  drawer,  and  not  from  the  time  when  it  becomes  payable.5 
But  if  a  person  accepts  a  bill  to  accommodate  the  drawer,  and 
afterwards  pays  it,  the  stitute  begins  to  run  from  the  time  of  pay- 
ment, upon  the  implied  agreement  to  indemnify  him,  and  not 
from  the  maturity  of  the  bill.6  But  it  seems  that,  in  such  a  case, 
if  the  action  is  brought  upon  the  bill  instead  of  upon  the  implied 
contract  to  indemnify,  the  statute  runs  from  the  time  when  the 
bill  was  payable.7 

1  Parker  v.  Stroud,  98  N.  Y.  379,  reversing  31  Hun,  578. 

'  Holmes  :•.  Kerrison,  2  Taunt.  323;  Fryer  v.  Roe,  12  C.  B.  437. 

3  Montague  v.  Perkins,  22  L.  J.  C.  P.  187. 

4  Benjamin's  Chalmer's  Digest,  256. 

'Whitehead  v.  Walker,  supra;  Wood  v.  McMeans,  23  Tex.  481;  Bullock  v. 
Campbell,  9  Gill  (Md.)  182;  Webster  v.  Kirk,  17  Q.  B.  944;  Godfrey  v.  Rice,  59 
Me.  30S.  See,  as  to  notice  when  notice  is  necessary,  Manchester  Bank  v.  Fel- 
I  >ws,  28  N.  H.  302;  Shed  v.  Brett,  r  Pick.  (Mass.)  401. 

'  Angrove  v.  Tippett.  ri  L.  T.  N.  S.  70S;  Reynolds  v.  Doyle,  1  M.  &  G.  753; 
Burton  v.  Rutherford.  49  Mo.  72;  Huntley  v.  Sanderson,  1  C.  &  M.  467;  King  v. 
I  l.uui  ih.  1   Bradtv.  (111.)  495. 

1  Webster  ~\  Kirk,  tupra.  But  contra,  see  Kennedy  v.  Carpenter,  2  Whart. 
n.)  344;  Woodruff  v.  Moore,  8  Barb.  (N.  V.)  171. 


§  1 37- J  BILLS,    NOTES,    CHECKS,    ETC.  337 

SEC.  1  l"j.  Suspension  of  Statute  by  Agreement  of  the  Parties.  — 
The  running  of  the  statute  may  be  suspended  by  the  mutual 
agreement  of  the  parties.1  Thus,  in  Virginia,2  a  mutual  under- 
standing and  agreement  between  the  debtor  and  creditor  that  a 
suit  should  not  be  brought  upon  an  account  until  the  debtor 
should  go  to  Europe,  and  return,  was  held  a  good  answer  to  the 
act  of  limitations  during  his  absence  from  the  country,  and  also 
competent  proof  to  prevent  the  court  from  expunging  from  such 
account  items  that  were  apparently  barred  by  the  statute.  In 
Texas,3  where,  in  an  action  on  a  note  the  defendant  filed  an 
account  in  offset,  to  which  the  plaintiff  set  up  the  statute,  it  was 
shown  that  the  articles  charged  in  the  account  were  by  agreement 
to  go  in  reduction  of  the  note,  it  was  held  that  the  account  was 
saved  from  the  operation  of  the  statute  by  the  agreement.  But 
in  order  to  suspend  the  statute,  there  must  be  an  agreement  for 
delay;  and  the  mere  fact  that  negotiations  for  a  settlement  or 
for  a  reference  are  pending,  there  being  no  agreement  for  a  delay, 
and  the  defendant  having  done  nothing  to  mislead  the  plaintiff, 
will  not  suspend  the  running  of  the  statute.4     It  is  held  in  those 

1  In  Webber  v.  Williams  College,  23  Pick,  (Mass.)  302,  a  debtor,  before  the 
statutory  bar  had  become  complete,  proposed  to  the  creditor  that  if  he  forbore 
bringing  action  he  should  continue  to  have  the  same  rights  for  one  year  more 
than  he  then  had,  which  the  creditor  refused,  but  did  not  commence  his  action 
until  after  the  year,  nor  until  the  statute  had  run  upon  the  claim,  this  was 
held  a  sufficient  compliance  with  the  debtor's  proposal,  estopping  the  debtor 
from  selting  up  the  statute.  In  Rowe  v.  Thompson,  15  Abb.  Pr.  (N.  Y.)  77,  a 
debtor  procured  his  creditors  to  sign  an  instrument  by  which  they  bound  them- 
selves not  to  sue  or  molest  him  for  his  indebtedness  for  two  years,  and  it  was 
held  that  so  doing  was  equivalent  to  an  agreement  not  to  plead  the  two  years 
as  a  part  of  the  statute,  and  operated  to  extend  the  limitation  of  the  statute 
two  years.  In  Reynolds  v.  Johnson,  9  Humph.  (Tenn.)  444,  where  a  creditor's 
claim  against  an  executor  was  barred  by  the  statute,  but  the  legatees  agreed 
with  the  executor  and  the  creditor  that  the  executor  should  pay  the  debt  and 
receive  a  credit  on  settlement  with  the  legatee,  and  the  executor  was  credited 
with  the  amount  accordingly,  it  was  held  that  the  executor  could  not  set  up  the 
statute  in  an  action  by  the  creditor  to  recover  the  debt.  But  in  Ball  v.  Wyeth, 
8  Allen  (Mass.)  275,  an  agreement  by  a  creditor  to  extend  the  right  to  redeem 
land  which  is  mortgaged  to  him  to  secure  his  debt,  and  not  to  foreclose  the 
mortgage  for  a  specified  time,  was  held  not  to  extend  the  personal  liability  of 
the  debtor  beyond  the  time  at  which  it  would  olherwise  cease  by  the  lapse  of 
the  statutory  period. 

*  Holladay  v.  Littlepage,  2  Munf.  (Va.)  316. 

3  Baird  v.  Ratcliff,  10  Tex.  81. 

4  Gooden   v.  Amoskeag  F.    Ins.  Co.,  20  N.  H.  73.     In  Coleman  v.  Walker,  3 

[stats,  of  lim. —  22] 


338  STATUTES    OF    LIMITATION.  [CHAP.    XII. 

States  in  which  an  acknowledgment  or  new  promise  is  required 
to  be  in  writing,  that  an  agreement  to  suspend  or  waive  the 
defense  of  the  statute  must  also  be  in  writing.1  The  running  of 
the  suspended  statute  starts  afresh  by  the  agreement  of  the  parties, 
and  this  is  done  whenever  a  valid  agreement  predicated  upon  a 
sufficient  consideration  is  entered  into  between  the  parties,  by 
which  the  creditor  agrees  to  give  the  debtor  more  time  upon  an 
overdue  note  or  bill;  and  in  such  case  the  statute  starts  anew  and 
only  begins  to  run  again  from  the  expiration  of  the  period  of 
credit  so  given.2  (a)  But  in  order  to  have  this  effect  the  agree- 
ment for  the  new  credit  must  be  such  as  is  binding  upon  the 
creditor,  and  takes  away  all  right  of  action  upon  the  debt  during 
the  period  agreed  upon.  Thus,  in  Massachusetts,  where  after 
a  note  had  become  due,  an  indenture  was  executed  between  the 
maker  and  his  creditors  by  which  he  assigned  his  property  in  trust 
for  such  of  his  creditors  as  should  become  parties  to  the  inden- 
ture, and  the  creditors  covenanted  to  discharge  him  from  all  claim 
or  demand,  action  or  right  of  action,  for  the  space  of  seven  years, 
upon  receiving  their  respective  portions  of  the  property,  and  the 
plaintiff  among  others  was  a  party  to  this  indenture,  it  was  held 
that  the  indenture  did  not  suspend  the  running  of  the  statute  as 
to  the  note.3  In  an  English  case,4  often  cited,  the  parties  entered 
into  an  agreement  to  go  into  an  inquiry  as  to  the  amount  of  dam- 
age for  an  admitted  breach  of  contract,  and  by  the  defendant's 
fault  the  inquiry  was  prolonged  to  such  an  extent  that  more  than 

Met.  (Ky.)  65,  where  the  payee  of  a  note  refrained  from  prosecuting  it  against 
the  sureties  within  the  statutory  period,  at  their  request,  as  there  was  no  bind- 
ing agreement  for  delay,  and  the  sureties  had  not  defeated  or  obstructed  the 
payee  in  a  suit  on  the  note,  it  was  held  that  they  were  not  estopped  from  setting 
up  the  statute  as  a  bar  to  the  note.  In  Harvey  v.  Tobey,  15  Pick.  (Mass.)  99, 
a  general  assignment,  with  a  covenant  to  discharge  the  debtor  from  all  claim  or 
demand,  action  or  right  of  action,  for  seven  years,  was  held  not  operative  to 
suspend  the  running  of  the  statute  as  to  one  of  the  creditors  who  was  a  party 
thereto. 

1  Hodgdon  v.  Chase,  29  Me.  47. 

2  Irving  v.  Veitch,  3  M.  &  W.  90. 

3  Harvey  v.  Tobey,  15  Pick.  (Mass.)  99. 
"East  India  Co.  v.  Paul,  7  Moo.  P.  C.  C.  85. 

1  1)   Irving     '.  Veitch  was  followed  in  deed,  a  fresh  promise  is  implied  on  the 

In       5to<  k,  75  L.  T.  422,  66  L.  J.  Q.  B.  debtor's  part  to  pay  the  original  debts, 

1  i'.    where  it  was  held  that,  upon  a  de-  and  limitation  begins  to  run  only  from 

fault  in   payment   under  a  composition  such  default. 


§  I37a-]  BILLS,    NOTES,    CHECKS,    ETC.  339 

six  years  had  elapsed  before  the  action  was  brought,  and  in  answer 
to  a  plea  of  the  statute  the  plaintiff  insisted  that  the  agreement  had 
the  effect  to  suspend  the  statute.  But  while  the  case  was  one  of 
great  hardship,  the  court  felt  obliged  to  hold  that  such  was  not 
the  effect  of  the  agreement,  and  that  the  statute  bar  had  become 
complete  before  the  action  was  brought.  "  The  rule,"  said  Lord 
Campbell,  "is  firmly  established,  that  in  assumpsit  the  breach 
of  contract  is  the  cause  of  action,  and  that  the  statute  runs  from 
the  time  of  breach."  A  mere  request  by  the  debtor  to  the 
creditor  to  delay  suit,  of  itself,  is  not  sufficient  to  suspend  the 
running  of  the  statute.1 

SEC.  1 37«.  Goods  sold  on  Credit  to  be  paid  in  Note  within  Cer- 
tain Time.  —  Where  goods  are  sold  on  a  credit  to  be  paid  for  at  the 
expiration  of  six  months  in  a  note  or  bill  at  two  or  three  months, 
it  is  held  to  be  a  sale,  in  effect,  upon  nine  months'  credit ;  so  that 
an  action  brought  at  any  time  within  six  years  from  the  end  of 
the  nine  months  would  be  in  time.  Thus,  where  the  defendant 
purchased  a  quantity  of  Spanish  wool  of  the  plaintiff  on  May  20. 
1823,  under  an  agreement  for  six  months'  credit,  payment  at  that 
time  to  be  made  by  bill  at  two  or  three  months,  at  the  purchaser's 
option,  nothing  being  said  in  the  invoice  as  to  the  time  of  pay- 
ment, and  no  note  or  bill  being  given,  and  the  action  commenced 
Jan.  14,  1830,  was  barred  by  the  statute  if  the  goods  were  to  be 
considered  as  purchased  on  a  credit  of  six  months,  the  plaintiff 
had  a  verdict  on  the  ground  that  the  time  of  credit  was  in  fact 
eight  or  nine  months,  at  the  purchaser's  option,  the  verdict  was 
sustained  in  King's  Bench.2 

Sec.  138.  Bank  Bills.  —  Unaer  our  present  system  of  banking, 
the  circulation  of  bills  being  through  the  government,  and  the 
government  being  responsible  for  their  redemption,  the  statute  of 
limitations  does  not  apply  thereto ;  nor,  under  the  old  system, 
did  the  statute  attach  to  bank  bills  until  after  they  had  been 
presented  for  payment  and  payment  thereof  refused.8  But  if  a 
bank  suspends  payment  and  closes  its  doors,  so  that  it  has  no 
place  of  business,  a  demand  is  dispensed  with,,  and  an  action  upon 
its  bills  may  be  commenced  at  once;  but  it  seems  that  the  bank 

1  Junior  Steam  Engine  Co.  v.  Douglas,  12  W.  N.  C.  (Penn.)  n. 

2  Helps  v.  Winterbottom,  2  B.  &  Ad.  431.     See  also  Brooke  v.  White,  1  N.  R. 
330;  Mussen  v.  Price,  4  East,  147;   Price  v.  Nixon,  5  Taunt.  338. 

3  Bank  of  Memphis  v.  White,  2  Sneed  (Tenn.)  4S2. 


340  STATUTES   OF    LIMITATION.  [CHAP.   XII. 

cannot  claim  the  benefit  of  the  statu'.e  from  the  time  it  closes  its 
doors,  but  the  holder  of  the  bills  may  bring  his  action  at  his 
pleasure,  the  service  of  the  writ  being  treated  as  a  demand  and 
the  statute  attaching  from  that  date.1  In  several  of  the  States 
bank  bills  are  expressly  excepted  from  the  operation  of  the 
statute.  Thus,  in  Maine,2  all  bills,  notes,  or  other  evidences  of 
debt  issued  by  a  bank  are  excepted.  In  Vermont3  the  same 
exception  exists  as  to  the  same  class  of  obligations  issued  by  any 
moneyed  corporation.  In  Massachusetts4  the  same  exceptions 
exist  as  in  Maine.  In  New  York5  the  same  exceptions  exists 
as  in  Vermont.  In  Michigan6  the  same  exception  exists  as  in 
Maine.  In  Arkansas7  the  same  exceptions  exist  as  in  Vermont. 
In  Iowa8  the  statute  does  not  apply  to  evidences  of  debt  intended 
to  circulate  as  money,  and,  as  will  be  seen  by  reference  to  the 
statutes  given  in  the  Appendix,  such  a  provision  exists  in  most 
of  the  States. 

Sec.  i 39.  Witnessed  Notes.  —  In  some  of  the  States 9  witnessed 
notes  are  expresssly  excepted  from  the  operation  of  the  statute 
and  left  to  the  operation  of  the  common-law  presumption  of  pay- 
ment arising  from  the  lapse  of  twenty  years.  In  Vermont,  while 
ordinary  notes  are  barred  in  six  years,  witnessed  notes  are  free 
from  its  operation  for  fourteen  years  from  the  time  a  right  of 
action  accrues  thereon.  In  Massachusetts  this  class  of  notes  is 
barred  in  twenty  years,  under  a  general  clause  in  the  statute 
extending  to  all  personal  actions  not  otherwise  provided  ior.(a) 
But,  in  order  to  come  under  this  head,  the  action  must  be  brought 
by  the  original   payee   or   his   executor    or   administrator.      But 

1  Thuiston  v.  Wolfborough  Bank,  18  N.  H.  391. 
5  Appendix,  Maine. 
'Appendix,  Vermont. 

*  Appendix,  Massachusetts. 

5  Appendix,  New  York. 

*  Appendix,  Michigan. 
1  Appendix,  Arkansas. 

6  Appendix,  Iowa. 

'  Maine,  Massachusetts,  and  Wisconsin. 

(a)   Under  the   Mass.    Pub.  Stats.,  c.  sory  note  in   a   technical   sense,  and  a 

i<)~.  ;'  3,  excepting  from  the  limitation  conditional  promise  to  pay  is  not  an  at- 

of  six  years  "  a  promissory  note  signed  tested    note.      Moore   v.    Edwards,    167 

in    the    presence    of   an    attesting    wit-  Mass.    74.      See   Shaw    v.    Smith,    150 

rifss,"    such    note    need    not    be    nego-  Mass.  166, 
liable;  it  must,  however,  be  a  promis- 


§   1 39-]  BILLS,    NOTES,    CHECKS,    ETC.  341 

under  this  statute  the  holder  of  such  a  note  may  bring  an  action 
thereon  in  the  name  of  the  payee  or  his  executor  or  administra- 
tor, with  their  assent,  and  that  such  assent  may  be  implied.1  But 
it  would  seem  that,  if  the  note  is  given  for  the  use  of  the  payee, 
or  of  the  indorser  of  the  maker,  such  a  right  cannot  be  implied  in 
favor  of  the  indorsee  of  the  first  indorsee;2  and  where  such  a 
note  was  made  payable  to  the  maker's  own  order,  and  was  signed 
and  indorsed  by  him  in  blank,  the  signing  was  witnessed  but  the 
indorsement  was  not,  it  was  held  not  to  be  a  witnessed  note 
within  the  saving  of  the  statute.3  Where  a  witnessed  note  is  sold 
by  an  assignee  in  bankruptcy,  the  purchaser  may  maintain  an 
action  in  the  name  of  the  payee  or  his  executor  or  administrator, 
the  law  implying  the  requisite  assent.4 

A  note,  in  order  to  amount  to  a  witnessed  note  within  the 
meaning  of  the  statute,  must  be  attested  by  a  person  who  at  that 
time  was  legally  competent  to  testify  to  the  fact  in  court;  and 
under  this  rule,  where  a  note  was  attested  by  the  wife  of  the 
payee,  who  at  that  time  was  not  a  competent  witness  for  or 
against  her  husband,  but  who  by  statute  was  made  competent 
before  the  action  was  tried,  it  was  held  that  the  note  was  not  a 
witnessed  note  within  the  meaning  of  the  statute.5  So,  too,  the 
witness  must  have  signed  it  as  such  with  the  maker's  assent,  and 
as  part  of  the  same  transaction,   and   must  either  have  seen  it 

'  Rockvvood  v.  Brown,  I  Gray  (Mass.)  261.  But  an  action  cannot  be  brought 
in  an  indorsee's  name  against  the  consent  of  the  payee,  nor  can  an  indorsee  of 
the  original  indorsee  bring  an  action  thereon  in  the  name  of  such  indorsee 
even  with  his  consent,  so  as  to  save  the  statute.  The  authority  must  be  derived 
from  the  payee  or  his  executor  or  administrator.  Therefore  where  a  witnessed 
note  was  given  to  a  creditor  payable  at  a  bank,  and  the  bank  subsequently  sold 
it  to  a  third  person  who  kept  it  for  fifteen  years  and  then  brought  an  action 
upon  it  in  the  name  of  the  bank,  by  and  with  its  consent,  against  the  maker's 
executors,  it  was  held  that  the  note  was  barred  by  the  six  years'  clause.  Vil- 
lage Bank  v.  Arnold,  4  Met.  (Mass.)  587;  Frye  v.  Barker,  4  Pick.  (Mass.)  384. 
In  Maine  an  assignee  may  sue  in  his  own  name.     Quimby  v.  Buzzle,  17  Me.  270. 

5  Houghton  v.  Mann,  13  Met.  (Mass.)  128. 

3  Kinsman  71.  Wright,  4  Met.   (Mass.)  219. 

4  Drury  v.  Vannevar,  5  Cush.  (Mass.)  442;  Pitts  v.  Holmes,  10  Cush.  (Mass.) 
92;  Pritchard  v.  Chandler,  1  Curtis  (U.  S.)  44S;  and  the  same  rule  seems  to 
apply  to  any  bona  fide  purchaser.  Rockwood  v.  Brown,  supra.  The  holder  of 
a  note  payable  to  a  certain  person  or  bearer  may  bring  an  action  thereon  in  the 
name  of  the  executor,  etc.,  of  the  payee,  with  the  consent  of  such  executor,  etc. 
Sigourney  v.  Severy,  4  Cush.  (Mass.)  176. 

'Jenkins  v.  Dawes,  115  Mass.  599. 


342  STATUTES   OF   LIMITATION.  [CHAP.   XII. 

signed  by  him,1  or  subsequently  have  signed  it  as  witness  at  the 
maker's  request.2  The  fact  that  a  person  saw  the  maker  sign  a 
note  does  not  warrant  him  in  signing  the  note  as  witness  at 
another  time  when  the  maker  is  not  present,  and  without  his 
knowledge  or  assent,  and  a  note  so  attested  is  not  a  witnessed 
note  within  the  meaning  of  the  statute.3 

The  attestation  of  the  signature  of  one  maker  of  a  note,  which 
is  subsequently  signed  by  another  person  as  maker,  whose  signa- 
ture is  not  attested,  does  not  make  the  note  a  witnessed  note  as 
to  the  last  maker,  but  only  as  to  the  first.4  In  order  to  bring  the 
note  within  this  statute  as  to  all  the  makers,  it  must  have  been 
signed  by  him  as  witness  in  presence  of  all  the  makers.5  A  pay- 
ment upon  a  witnessed  note  within  twenty  years  from  its  date, 
renews  it  for  twenty  years  from  the  date  of  the  payment;6  except 
in  Vermont,  where  the    statute  runs  in  fourteen  years. 

No  particular  form  is  requisite  to  make  a  witnessed  note,  nor 
is  it  necessary  that  any  words  indicating  the  capacity  in  which 
the  witness  signs  the  note  should  be  written  there.7  But  the  fact 
that  his  name  was  placed  there  as  witness  may  be  shown  by  proof 
aliunde.  Thus,  where  a  person  put  his  name  upon  a  note  as  wit- 
ness just  below  the  body  of  the  note,  and  directly  above  the  date, 
it  was  held  to  apply  to  the  whole  note  if  shown  to  have  been 
placed  there  for  that  purpose  after  the  note  was  completed.8  An 
indorsement  written  upon  a  note  acknowledging  it  to  be  due, 
signed  by  the  maker,  and  witnessed,  does  not  amount  to  a  wit- 
nessed note;9  but  a  memorandum  thereon  as  follows:  "For 
value  received    I  hereby  acknowledge  this  note  to  be  due,  and 

1  Smiih  v.  Dunham,  8  Pick.  (Mass.)  246;  Tompscn  v.  Fisher,  123  Mass.  559. 
The  question  as  to  whether  a  note  was  signe  1  at  the  maker's  request  and  is  a 
part  of  the  same  transaction  is  for  the  jury.     Id.;   Lapham  v.  Briggs,  27  Vt.  26. 

2Swazey  v.  Allen,  115  Mass.  594;   Boody  v.  Lunt,  19  Me.  72. 

'Smith  v.  Dunham,  supra;  Trustees  v.  Rowell,  49  Me.  330. 

4  Walker  v.  Warfield,  6  Met.  (Mass.)  466.  In  Stone  v.  Nichols,  20  Me.  49,  a 
note  was  signed  by  the  maker  in  the  presence  of  a  witness,  and  duly  attested, 
and  subsequently  it  was  signed  on  the  back  by  another  person,  but  not  in  the 
presence  of  the  witness,  but  in  pursuance  of  an  original  agreement  to  that  effect, 
and  it  was  held  not  a  witnessed  note  as  to  the  latter. 

6  Lapham  v.  Briggs,  27  Vt.  26. 

6  Estes  v.  Blake,  30  Me.  164;  Howe  v.  Saunders,  38  id.  350;  Lincoln  Academy 
7'.  Newball,  id.  179. 

1  Faulkner  v.  Jones,  16  Mass.  290. 

8  Warren  v.  Chapman,  115  Mass.  584. 

'Gray  v.  Bowden,  23  Pick.  (Mass.)  282. 


'.§  140.]  BILLS,    NOTES,    CHECKS,    ETC.  343 

promise  to  pay  the  same  on  demand ;"  l  or,  "I  hereby  renew  the 
within  note,"  witnessed,  have  been  held  to  amount  to  witnessed 
notes.2  An  instrument  as  follows:  "On  demand  with  interest 
please  pay  J.  S.  or  order  fifty-five  dollars,"  witnessed,  has  been 
held  to  come  within  the  statute  as  a  witnessed  note.3 

Sec  140.  Checks.  —  When  a  check  is  given  upon  a  bank  in 
which  the  drawer  has  no  funds,  and  in  which  he  had  none  during 
the  ensuing  six  years,  the  statute  of  limitations  begins  to  run 
from  the  time  when  the  check  was  given;4  and  in  such  cases  no 
demand  or  presentment  need  be  shown,5  even  though  the  want 
of  funds  is  shown  to  have  resulted  from  the  fraudulent  act  of 
the  maker,  he  is  not  thereby  estopped  from  setting  up  the 
statute.  The  breach  of  contract  is  the  cause  of  the  action, 
even  though  there  is  fraud  on  the  maker's  part,  and  the  contract 
is  broken  instanter,  as  in  all  cases  where  a  check  is  drawn  upon  a 
bank  where  the  maker  has  no  funds  it  is  due  without  present- 
ment and  demand.6  But  where  the  drawer  of  the  check  has 
funds  in  the  bank  upon  which  it  is  drawn,  the  statute  does  not 
begin  to  run  until  it  has  been  presented  for  payment  and  pay- 

1  Commonwealth  v.  Whitney,  1  Met.  (Mass.)  21. 
'  Daggett  v.  Daggett,  124  Mass.  14. 

3  Almy  v.  Winslow,  126  Mass.  342. 

4  In  Brust  v.  Barrett,  16  Hun  (N.  Y.)  409,  affirmed  in  82  N.  Y.  300,  where  the 
defendant  gave  a  check  upon  a  bank  where  he  had  no  funds  at  the  time  or  for 
more  than  six  years  thereafter,  and  the  check  was  not  presented  for  payment 
until  ten  years  after  it  was  made,  it  was  held  that  the  statute  began  to  run  at 
the  time  the  check  was  made,  and  an  action  thereon  against  the  maker  was 
barred  after  six  years.  The  rule  is  well  established  that  if  the  drawer  has  no 
funds  in  the  hands  of  the  drawee  an  action  can  be  maintained  against  the 
former  without  presentment  or  notice  of  non-payment.  Mohawk  Bank  v. 
Broderick,  10  Wend.  (N.  Y.)  304;  Fitch  v.  Redding,  4  Sandf.  (N.  Y.)  130;  Healy 
v.  Gilman,    1   Bosw.  (N.  Y.)  235;  Johnson  v.  Bank  of  North- America,  5   Robt. 

•{N.  Y.)  554.  The  fact  that  the  want  of  funds  was  the  result  of  (he  fraudulent 
act  of  the  drawer  would  not  estop  him  from  setting  up  the  defense  of  the 
statute.  In  such  a  case  the  check  is  due  without  presentment  and  demand. 
The  breach  of  the  contract  is  the  cause  of  the  action,  and  the  statute  begins  to 
run  from  the  time  of  such  breach,  even  if  there  is  fraud  on  the  part  of  the 
defendant.  East  India  Co.  v.  Paul,  7  Moo.  P.  C.  89;  Battley  v.  Faulkner,  3  B. 
&  Aid.  2S8;  Whitehoase  v.  Fellows,  10  C.  B.  N.  S.  765. 

'Johnson  v.  Bank  of  North  America,  5  Robt.  (N.  Y.)  554;  Mohawk  Bank  v. 
Broderick,  10  Wend.  (N.  Y.)  304;  Healy  v.  Gilman,  1  Bosw.  (N.  Y.)  235;  Fitch  v. 
Redding,  4  Sandf.  (N.  Y.)  130. 

6  Wilkinson  v.  Verity,  L.  R.  6  C.  P.  206;  East  India  Co.  v.  Paul,  7  Moo.  P.  C. 
C.  85. 


344  STATUTES   OF   LIMITATION.  [CHAP.   XII. 

ment  has  been  refused. (a)  Indeed,  at  law  a  check  is  treated  as 
an  inland  bill  of  exchange;  and,  if  a  loan  is  made  by  means  of 
a  check,  a  cause  of  action  does  not  arise  against  the  debtor  until 
the  check  is  cashed.1 

Where  a  check  is  certified,  or  marked  "good"  by  the  bank 
on  which  it  is  drawn,  the  holder  stands  in  the  place  of  the  original 
depositor  as  to  the  amount  covered  by  it,  and  the  statute  does 
not  begin  to  run  against  him  until  an  actual  demand  has  been 
made  by  him  upon  the  bank  for  payment.2  As  stated  in  a  New 
York  case,3  a  bank  by  certifying  a  check  to  be  good  creates  a 
simple  and  unconditional  obligation  on  its  part  to  pay  the  same 
on  demand,  and  demand  may  be  made  at  any  time  suiting  the 
convenience  of  the  party  entitled  to  payment,  and  no  laches  can 
be  imputed  to  him  because  of  delay. 

If  a  bank  upon  which  a  check  is  drawn  payable  to  a  particular 
person  or  order,  pays  the  amount  of  the  check  to  one  presenting 
it  with  a  forged  indorsement  of  the  payee's  name,  both  parties 
supposing  the  indorsement  to  be  genuine,  the  right  of  action  to 
the  bank  to  recover  back  the  money  from  the  person  so  obtain- 
ing it  accrues  immediately  upon  the  payment  of  the  money.4 

1  In  Garden  v.  Bruce,  L.  R.  3  C.  P.  300,  where,  in  an  action  for  a  loan  made 
by  a  check  for  £45,  June  14,  1861,  the  writ  was  not  issued  until  June  21,  1867, 
and  the  defendant  set  up  the  statute  of  limitations,  it  appeared  that  the  defend- 
ant paid  the  check  into  his  bank  on  the  day  following  June  15,  and  received 
credit  for  it,  and  the  defendant  having  omitted  to  indorse  the  check,  though 
payable  to  order,  it  was  returned  to  him  for  signature,  and  was  not  presented  to 
the  plaintiffs  and  paid  by  them  till  the  21st  of  June,  1861,  it  was  held  that  the 
statute  was  not  a  bar.  The  question,  according  to  Keating,  J.,  was.  When 
could  the  plaintiff  have  first  sued  the  defendant  for  money  lent?  And  he  was 
of  the  opinion  that  the  plaintiff  could  not  have  done  so  till  he  had  lent  the 
money,  which  was  when  the  check  was  cashed,  on  the  21st  June. 

8  Girard  Bank  v.  Bank  of  Penn.  Township,  39  Penn.  St.  92;  Meads  v.  Mer- 
chants' Bank,  25  N.  Y.  143;  Atlantic  Bank  v.  Merchants'  Bank,  10  Gray 
(Mass.)  532;  Bank  of  the  Republic  v.  Baxter,  31  Vt.  104. 

3  Willets  v.  Phenix  Bank,  2  Duer  (N.  Y.)  121. 

4  In    Leather   Manufacturers'    National    Bank   v.    Merchants'   Nat.   Bank,  128 
U.  S.  26,  Gray,  J.,  said:     "  Whenever  money  is  paid  upon  the  representation  of 
the  receiver  that  he  has  either  a  certain  title  in  property  transferred  in  con- 
fa)  A    bank   check,    payable    on    de-     refusal  to  pay,  when  presentation  is  not 

mand,  is  a  written  contract  within  the  excused  in  law.     If  the  drawer  has  no 

meaning   of    a    statute    of    limitations  funds  in  the  bank,  presentation  is  not 

wherein  "  simple  contracts  in  writing  "  necessary,  and  the  statute  begins  to  run 

are    named,  and   the  limitation  appli-  from  the  date  of  the  check.      Haynes  v. 

1  able    thereto   (six    years   in   Georgia),  Wesley,  112  Ga.  658. 
runs  from  the  date  of  presentation  and 


§  140.]  BILLS,    NOTES,    CHECKS,    ETC.  345 

sideration  of  the  payment,  or  a  certain  authority  lo  receive  the  money  paid, 
when  in  fact  he  has  no  such  title  or  authority,  then,  although  there  be  no  fraud 
or  intentional  misrepresentation  on  his  pari,  yet  there  is  no  consideration  for 
the  payment;  and  the  money  remains,  in  equity  and  good  conscience,  the  prop- 
erty of  the  payor,  and  may  be  recovered  back  by  him  without  any  previous 
demand  as  money  had  and  received  to  his  use.  His  right  of  action  accrues, 
and  the  statute  of  limitations  begins  to  run  immediately  upon  the  payment." 
Citing  Bree  v,  Holbech,  2  Doug.  654;  Utica  Bank  v.  Van  Gieson,  18  Johns.  485; 
Bank  of  United  States  v.  Daniel,  12  Pet.  32;  Dill  v.  Wareham,  7  Met  43S; 
Sturgis  r.  Preston,  134  Mass.  372;  Earle  v.  Bickford,  6  Allen,  549;  Blethen  v. 
Lovering,  58  Me.  437;  Merchants'  National  Bank  v.  First  National  Bank, 
4  Hughes,  9;  Cowper  v.  Godmond,  9  Bing.  748;  s.  c,  3  Moore  &  S.  219; 
Churchill  v.  Bertrand,  3  Q.  B.  N.  S.  568;  s.  c,  2  Gale  &  D.  548;  Thomson  v. 
Bank  of  British  North  America,  82  N.  Y.  1;  Bank  of  British  North  America  v. 
Merchants'  National  Bank,  91  N.  Y.  106;  Southwick  v.  First  National  Bank,  84 
N.  Y.  420;  Sharkey  v.  Mansfield,  90  N.  Y.  227;  Frank  v.  Lanier,  91  N.  Y.  112; 
Corn  Exchange  Bank  v.  Nassau  Bank,  91  N.  Y.  74.  "A  person  who  presents 
forged  paper  to  a  bank  and  procures  the  payment  of  the  amount  thereof  to  him, 
even  though  he  makes  no  express  warranty,  yet,  in  law,  he  is  treated  as  repre- 
senting that  the  paper  is  genuine,  and  even  though  the  payment  is  made  to  him 
in  ignorance  of  the  forgery,  he  is  liable  to  an  action  to  recover  back  the  money 
which  in  equity  and  good  conscience  has  never  ceased  to  be  the  property  of  the 
payor.  Under  these  circumstances  there  is  never,  at  any  stage  of  the  transac- 
tion, any  consideration  for  the  payment,  and  the  statute  of  limitations  begins 
to  run  immediately  upon  the  payment.  A  right  of  action  under  such  circum- 
stances does  not  depend  upon  any  express  promise  of  the  defendant  after  the 
discovery  of  the  mistake,  or  upon  any  demand  by  the  plaintiff,  but  accrues 
at  the  date  of  the  payment."  It  was  also  held  that  the  certification  did  not 
make  the  check  due  without  demand.  A  certified  check  cannot  be  sued  upon 
without  demand.  The  mere  drawing  of  the  check  was  not  demand.  It  only 
authorizes  H.,  or  some  person  in  the  behalf  of  H.,  to  make  the  demand,  and 
this  was  never  done.  The  payment  of  the  check  by  the  defendant  discharged 
no  part  of  its  indebtedness  to  plaintiff,  and  the  latter  lost  none  of  its  rights  by 
receiving  under  a  mistake  as  to  the  facts,  the  check  as  properly  paid  and  charged 
to  its  account.  The  loss  as  between  the  defendant  and  the  plaintiff  as  to  a 
wrongful  payment  must  fall  on  the  defendant.  Weisser  v.  Denison,  10  N.  Y. 
6S;  Howell  v.  Adams,  68  id.  314:  Walsh  v.  German  Am.  Bank,  73  id.  424; 
Thompson  v.  Bank  of  British  North  America,  83  id.  1. 


346 


STATUTES   OF   LIMITATION. 


[CHAP.   XIII. 


CHAPTER  XIII. 


Miscellaneous  Causes  of  Action. 


SEC.   141.  Contracts,   Express  and  Im- 
plied. 

142.  Deposits,  Certificates  of  De- 

posits, etc. 

143.  Forged     or    Invalid    Instru- 

ments. 

144.  Implied  Warranty. 

145.  Sureties,  Indorsers,  etc. 

146.  Contract  of  Indemnity,  Guar- 

anties, etc. 

147.  Money  paid  for  Another. 

148.  Action  under  Enabling  Acts. 

149.  Actions  againsi  Stockholders 

of  Corporations. 

150.  Stock  Subscriptions. 

151.  Money    payable    by    Instal- 

ments. 

152.  Over-payments.   Money  paid 

by  Mistake. 

153.  Failure  of  Consideration. 

154.  Sheriffs,  Actions  against,  for 

Breach  of  Duty. 

155.  Fraudulent  Representations 

in  Sales  of  Property. 

156.  When  Leave  of  Court  to  sue 

is  necessary.  Effect  of,  on 
Commencement  of  Limita- 
tion. 


Sec.   157.  Orders  of  Court. 

158.  Property  obtained  by  Fraud. 

159.  Promise  to  marry. 

160.  Contracts  void  under  Statute 

of     Frauds,    Actions     for 
Money  paid  under. 

161.  Against     Heirs,    when   Ten- 

ancy by  Curtesy  or  Dower 
exists. 

162.  Actions   against  Sureties  on 

Administrator's       Bonds, 
etc. 

163.  Actions    against  Guardians, 

by  Ward. 

164.  Assessments,  Taxes,  etc. 

165.  Agreement   to    pay    Incum- 

brances. 

166.  General   Provisions. 

167.  For  Advances  uponProperty. 

168.  Usurious  Interest. 

169.  Between   Tenants    in    Com- 

mon of  Property. 

170.  When  the  Law  gives  a  Lien 

for  Property  sold. 

171.  Co-purchasers,    Co-Sur»ties, 

etc. 


SEC.  141.  Contracts,  Express  and  Implied.  —  Upon  contracts 
of  all  classes,  whether  written  or  verbal,  the  statute  begins  to  run 
from   the  time  when  a   right   of   action   accrues.1     Thus,   where 


'Baxter   v.    Gay,   14  Conn.   119;  Tisdale  v.   Mitchell,    15   Tex.  480;  Jones  v. 

Lewis,    11    id.    359;  Sprague   v.    Sprague,  30  Vt.  4S3;   Rabsuhl   v.  Lack,  35  Mo. 

316;  Justice,  etc.  v.  Orr,  12  Ga.  137;  Clarke  v.  Jenkins,  3  Rich.  (S.  C.)  Eq.  318; 

1 1  lyes  v.  Goodwin,  4  Met.  (Ky.)  80;  Guignard  v.  Parr,  4  Rich.  (S.  C.)  1S4;   Sims 

v.  Goudelock,  6  id.  100;   Payne  v.  Gardiner,  29  N.  Y.  146;   Hikes  v.  Crawford,  4 

Iiush  (Ky.)  19;   Pittsburgh,  etc.,  R.  R.  Co.  v.  Plummer,  37   Penn.  St.  415;   Tag- 

;:  l r t  v.  Western,  etc.,  R.  R.  Co.,  24  Md.  563;  Davies  v.  Cram,  4  Sandf.  (N.  Y.) 

Daniel   v,   Whitfield,  Busb.  (N.  C)  L.  294;   Berry  v.   Doremus,  30  N.  J.  L. 

Waul   v.    Kirkman,   25   Miss.   609;  Payne  v.   Slate,   39   Barb.  (N.  Y.)  634; 

'I  urner  v.  Martin,  4  Robt,  (N.  Y.)  661;   Peck  v.  New  York,  etc.,  Steamboat  Co., 

w.   (N.  Y.)  220;  Murray    v.    Coster,    20  Johns.   (N.  Y.)  576.      In   Catholic 

of  I  hii  a  Bauer,  <>2  III.  lS8,  where  plans  of  a  church  were  completed 

b(  t  ire  suit  brought,  but  the  architect  furnishing  them  con- 


§  141.]  MISCELLANEOUS   CAUSES   OF   ACTION.  347 

-goods  or  property  of  any  description  are  sold,  and  no  time  is 
fixed  for  payment,  the  law  implies  a  promise  to  pay  when  the 
purchase  is  made;  and  the  plaintiff  cannot,  by  showing  a  custom 
on  his  part  to  give  one  year's  credit,  prevent  the  running  of  the 
statute  from  the  day  of  sale.1  Where  the  terms  of  a  contract  are 
express,  and  the  time  of  payment  is  agreed  upon,  of  course  the 
statute  begins  to  run  from  that  time,  unless  the  time  has  been 
extended  by  the'agreement  of  the  parties;  and  when  a  contract 
has  been  made,  and  the  time  of  payment  has  been  fixed,  and 
more  property  is  delivered  than  was  to  be  delivered  under  the 
contract,  or  more  or  extra  work  is  done,  and  no  contract  is  made 
as  to  the  time  of  payment  for  the  extra  goods,  or  extra  work,  the 

tinued  to  superintend  the  work  until  within  five  years  of  bringing  the  suit, 
when  he  was  discharged,  it  was  held  that  the  statute  did  not  begin  to  run  until 
the  architect  was  discharged,  and  that  a  suit  brought  within  five  years  of  that 
time  was  in  season  to  save  the  debt  from  the  statute.  In  Clark  v.  L.  S.  &  M.  S. 
Ry.  Co.,  94  N.  Y.  217,  it  was  held  that  the  code  exemption  from  the  operation 
of  the  statute  limiting  the  time  for  the  commencement  of  actions,  a  case  where 
a  person  was  entitled  to  commence  an  action  when  the  code  took  effect,  and 
declaring  that  in  such  a  case,  "  the  provisions  of  law  applicable  thereto  imme- 
diately before  this  act  takes  effect,  continue  to  be  so  applicable,  notwithstand- 
ing the  repeal  thereof,"  does  not  refer  simply  to  stat  utory  provisions,  but  within 
the  meaning  of  said  exception  a  rule  or  doctrine  established  by  judicial  decision 
is  a  "  provision  of  law  "  equally  with  one  enacted  by  the  legislature;  and  that, 
where  the  plaintiff  was  entitled  to,  and  had  commenced  his  action  before  the 
code  went  into  effect,  that  the  provision  of  the  code,  making  the  statute  of  lim- 
itations of  the  place  of  residence  of  a  non-resident  defendant  available  as  a 
defense  in  certain  cases,  did  not  apply;  but  that  the  case  was  governed  by  the 
rule  in  force  when  the  code  went  into  effect,  i.e.,  that  the  statute  of  limitations 
of  a  foreign  State  constituted  no  defense  in  an  action  brought  here. 

1  Brent  v.  Cook,  12  B.  Mon.  (Ky.)  267.  In  Hursh  v.  North,  40  Penn.  St.  241, 
evidence  of  a  custom  of  the  plaintiff  to  give  a  credit  of  six  months  was  held  not 
admissible  for  the  purpose  of  proving  that  the  price  was  not  to  be  paid  when 
the  goods  were  sold,  but  on  a  certain  date  thereafter,  so  as  to  avoid  the  statute 
by  showing  that  the  bill  was  not  due  until  within  the  statutory  period.  In 
Roberts  v.  Ely,  113  N.  Y.  12S,  where  the  plaintiff  brought  an  action,  in  1S81,  to 
recover  a  specific  portion  of  certain  insurance  money  collected  by  E.,  the 
defendant's  testator,  in  1872,  of  which  portion  the  plaintiff  claimed  he  was  the 
equitable  owner,  it  was  held  that  the  alleged  cause  of  action  was  a  liability 
implied  by  law,  which  arose  when  the  money  was  received  by  E. ;  that  it  was 
not  barred  by  the  six  years'  statute  then  in  force,  and  that  money  in  the  hands 
of  one  person,  to  which  another  is  equitably  entitled,  may  be  recovered  by  the 
latter  in  a  common-law  action  for  money  had  and  received,  subject  to  the 
restriction  that  the  mode  of  trial  and  the  relief  which  can  be  given  in  a  legal 
action  is  adapted  to  the  exigencies  of  the  case,  and  is  capable  of  adjustment  in 
such  an  action,  without  prejudice  to  the  interests  of  other  parties. 


348  STATUTES   OF    LIMITATION.  [CHAP.   XIII. 

statute  begins  to  run  as  soon  as  the  goods  are  delivered  or  the 
extra  work  is  completed.  Thus,  when  a  contract  was  entered 
into  to  build  a  ship  at  an  agreed  price,  and  afterwards  the  ship 
was  built  larger,  but  without  any  further  agreement  as  to  the 
time  of  payment  for  the  extra  labor,  it  was  held  that  the  statute 
began  to  run  as  soon  as  the  work  was  completed.1  Where  a 
term  of  credit  is  agreed  upon,  of  course,  the  statute  does  not 
begin  to  run  until  the  time  of  credit  has  expired,2  and  in  this 
class  of  contracts  little  or  no  difficulty  in  determining  the  time 
when  the  statute  begins  to  run  exists.  The  only  difficulty  arises 
with  that  class  of  contracts  where  the  time  for  payment  is  not 
fixed,  but  is  left  to  legal  inference.  In  a  contract  for  services,  if 
the  work  is  done  under  a  continuous  contract,  and  no  time  for 
payment  is  fixed,  a  right  of  action  does  not  accrue  until  the 
work  is  completed;3  but  although  the  work  is  continuous,  yet 
if  it  is  done  under  distinct  contracts,  a  right  of  action  accrues 
under  each  contract,  and  the  statute  begins  to  run  from  the  time 
when  it  is  completed.4 

The  statute  begins  to  run  upon  a  claim  for  the  taking  of  usurious 
interest  from  the  time  when  such  interest  is  paid.5  And  each 
payment  of  usury  furnishes  a  distinct  cause  of  action  against 
which  the  statute  immediately  commences  to  run.6 

In  Louisiana,  it  is  held  that  the  statute  does  not  run  against 
the  debt  secured  by  a  pledge  as  long  as  the  creditor  has  pos- 
session of  the  pledge.      The  definition  of  it  being  treated  as  a 

1  Peck  v.  New  York  &  Liverpool  S.  S.  Co.,  5  Bosw.  (N.  Y.)  226. 

2  Tisdale  v.  Mitchell,  12  Tex.  68;  Bush  v.  Bush,  9  Penn.  St.  260. 

3  Eliot  v.  Lawton,  7  Allen  (Mass.)  274.  In  Littler  v.  Smiley,  9  Ind.  116, 
where  in  an  action  for  work  done  for  the  plaintiff's  intestate  no  time  for  pay- 
ment was  specified,  and  no  time  of  service  was  agreed  on,  it  was  held  that  the 
statute  did  not  begin  to  run  as  to  any  of  the  work  until  the  work  was  fully  com- 
pleted, although  it  extended  through  a  series  of  years.  But  in  Davis  v.  Gorton, 
)6  N,  Y.  255,  where  a  person  entered  into  the  defendant's  employment  at  a 
fixed  salary,  but  for  no  definite  time,  and  no  time  for  payment  was  agreed  on, 
it  was  held  to  be  a  general  hiring  from  year  to  year,  the  pay  for  each  year's  serv- 
ice becoming  due  at  the  end  thereof,  so  that  the  statute  began  to  run  on  each 
year's  wages  from  the  end  of  each  year.  McLaughlin  v.  Maund,  55  Ga.  689; 
Pursell  v.  Fry,  19  Hun  (N.  Y.),  595. 

4  Davis  v.  Gorton,  supra.     See  Decker  v.  Decker,  108  N.  Y.  128. 
6  Kahway  National  Hank  v.  Carpenter,  52  N.  J.  L.  161. 

•Albany  v.  Abbott,  6l  N.  IL  157;  Barker  v.  Strafford  Co.  Savings  Bank,  61 
N.  H.  147. 


§   142.]  MISCELLANEOUS   CAUSES   OF   ACTION.  349 

constant  recognition  of   the  debt,  a  remuneration  or  prescription 
which  prevents  the  statute  from  beginning  to  run.1 

SEC.  142.  Deposits,  Certificates  of  Deposits,  &c.  —  In  England 
a  general  deposit  in  a  bank  is  treated  as  a  loan,  and  the  statute 
begins  to  run  instanter;  3  but  in  this  country  it  has  been  held 
that  an  action  cannot  be  maintained  for  such  a  deposit  without 
an  actual  demand;3  and  from  these  cases  it  follows  that,  as  a 
right  of  action  does  not  accrue  until  there  has  been  a  demand, 
the  statute  of  limitations  does  not  begin  to  run  until  a  demand 
or  something  equivalent  thereto  has  been  made.  If  a  special 
deposit  is  made,  payable  at  a  specific  time,  or  upon  notice  of  a 
certain  duration,  of  course  the  statute  does  not  begin  to  run  until 
the  time  has  expired  or  the  notice  been  given  and  expired. 
Thus,  in  Massachusetts,4  it  was  held  that  where  a  balance  was 
struck  monthly  on  a  savings-bank  book  of  a  depositor  the  statute 
began  to  run  from  the  time  the  balance  was  struck.  Where 
money  or  property  is  deposited  with  a  bank  or  individual  to  be 
paid  or  returned  upon  demand,  it  is  not  payable  or  returnable, 
so  that  an  action  will  lie  therefor,  until  a  demand  has  first  been 
made  therefor,  consequently  the  statute  does  not  begin  to  run 
until  after  demand  ;5(<?)  so  where  money  is  deposited  with  an 
individual  who  is  to  pay  interest  entered  thereon,  with  an  agree- 
ment that  it  is  not  to  be  withdrawn  except  by  draft  at  thirty  days 
after  sight,  the  statute  does  not  begin  to  run,  nor  does  the  pre- 
sumption of  payment  arise  until  a  draft  therefor  has  been  pre- 
sented and  dishonored.6 

Where  money  is  deposited  with  one  man  for  the  use  of  another, 
it  is  held  that  a  cause  of  action  accrues  to  the  person  for  whose 

1  Citizens'  Bank  v.  Hyams,  42  La.  An.  729. 

5  Pott  v.  Clegg,  16  M.  &  W.  321.  In  Wright  v.  Paine,  62  Ala.  340,  where 
money  was  deposited  with  an  individual  under  a  writing  by  which  the  depos- 
itary acknowledges  the  receipt  of  a  certain  number  of  dollars  in  gold,  "  on 
deposit  to  be  paid  "  to  the  depositor  "  on  demand,"  it  was  held  that,  in  the 
absence  of  any  evidence  of  extrinsic  facts  to  aid  its  construction,  it  would  be 
treated  as  a  loan  rathei  than  a  bailment,  and,  therefore,  became  due  and  pay- 
able, and  the  statute  began  to  run  thereon  from  its  date. 

3  Johnson  v.  Farmers'  Bank,  r  Harr.  (Del.)  117;  Watson  v.  Phoenix  Bank, 
■8  Met.  (Mass.)  217;   Downes  v.  Phoenix  Bank,  6  Hill  (N.  Y.),  297. 

4  Union  Bank  v.  Knapp    3  Pick.  (Mass  )  96. 
'Finkbone'  Appeal,  86  Penn.  St.  368. 

6  Sullivan  v.  Fosdick,  10  Hun  (N.  Y.),  173;  Payne  v.  Gardiner,  29  N.  Y.  146. 

(a)  See  infra,  n.  (a.) 


350  STATUTES   OF   LIMITATION.  [CHAP.   XIII. 

use  it  was  deposited,  from  the  time  of  deposit,  unless  a  time 
within  which  it  is  to  be  paid  is  fixed  upon ; !  but  this  would  seem 
to  depend  upon  the  nature  of  the  contract  to  be  implied  from  the 
circumstances  of  the  case.  If  the  money  was  left  with  the  third 
person  at  the  request  of  the  person  for  whom  it  was  intended, 
the  rule  stated  above  would  doubtless  be  correct;  but,  if  not,  the 
period  from  which  the  statute  would  run  would  seem  to  be, 
according  to  the  cases,  from  the  time  when  a  demand  was  made 
for  the  money,  unless  the  circumstances  are  such  as  to  raise  an 
implied  promise  on  the  part  of  the  depositary  to  seek  the  bene- 
ficiary and  pay  him  the  money  at  all  events.2  Where  a  certificate 
of  deposit  is  issued  its  terms  may  be  decisive  of  the  period  when 
the  statute  attaches  thereto;  the  statute  is  often  held  not  to 
begin  to  run  thereon  until  a  demand  had  been  made  for  the 
money,3  (a)  and  usually  such  a  certificate  is  not  dishonored  until 
presented.4     But,  where  money  is  deposited  in  a  bank  from  time 

1  Buckner  v.  Patterson,  Litt.  Sel.  Cas.  (Ky.)  234. 
5  Hutchins  v.  Gilman,  9  N.  H.  359. 

3  National  Bank  of  Fort  Edward  v.  Washington  Co.  Bank,  5  Hun  (N.Y.),  605. 
See  Smiley  v.  Fry,  100  N.  Y.  262. 

4  Howell  v.  Adams,  6S  N.  Y.  314;  Payne  v.  Gardiner,  29  N.  Y.  146;  Farmers' 
&  Mechanics'  Bank  r.  Butchers'  &  Drovers'  Bank,  14  N.  Y.  627.  Such  also  is 
the  rule  in  Indiana.  Brown  v.  McElroy,  52  Ind.  404.  But  in  Meador  v.  Dollar 
Savings  Bank,  56  Ga.  605,  it  was  held  that  a  certificate  of  deposit  payable  to  the 
order  of  the  depositor,  but  containing  no  other  indication  of  the  time  of  payment 

fa)  Certificates  of  deposit,  in  the  usual  given  for  such  a  deposit.  Mereness  v. 
form,  are  now  generally  held  nego-  First  Nat.  Bank,  supra.  On  the  other 
liable;  they  are,  in  effect,  promissory  hand,  the  transaction  is  viewed  in  New- 
notes,  and  are  governed,  with  cer-  York  and  certain  other  States  not  only 
tain  exceptions,  by  the  same  rules  as  as  creating  a  debt,  but  also  as  being  a 
those  instruments.  Klauber  v.  Big-  real  deposit  and  a  bailment  rather  than 
gers'aff,  47  Wis.  551;  Curran  v.  Witter,  a  loan,  making  a  demand  necessary 
68  Wis.  16;  Citizens'  Nat.  Bank  v.  before  the  holder  of  the  certificate  is  en- 
Brown,  45  Ohio  St.  39;  Mereness  v.  titled  to  a  return  of  the  money  depos- 
First  Nat.  Hank  (Iowa),  83  N.  W.  711;  ited.  Smiley  v.  Fry,  100  N.  Y.  262; 
Tobin  7>.  McKinney  (S.  D.),  84  id.  228;  Shute  v.  Pacific  Nat.  Bank,  136  Mass. 
O'Neill  z>.  Brad  ford,  1  Pirtney  (Wis.)  390,  4S7;  Hunt,  Appellant,  141  Mass.  515; 
42  Am.  Dec.  575,  and  note;  14  Harvard  Bellows  Falls  Bank  v.  Rutland  County 
L.  Rev.  468.  In  Iowa  and  other  Stales,  Bank,  40  Vt.  377;  McGough  v.  Jami- 
a  deposit  of  money  in  a  bank  in  the  son,  107  Penn.  St.  336;  seesiipra,  §  11S, 
usual  course   of  business   amounts    to  note  (a). 

a    loan    to    the    bank,   which    becomes  As    to    municipal    orders,     whether 

the  depositor's  debtor  therefor,  and  not  negotiable  or  not,  the  general  rule  is 

his  bailee.      Lowry  v.  Polk  County,  51  that  actions  will  not  lie  thereon  till  they 

[offa,  50;  Mereness  v.  First  Nat.  Bank,  have    been    presented    to    the   proper 

,    3   Am.  iV    Eng.   Fuel,  of  Law,  p.  officer    for    payment.      See    Blatsdell  v. 

\nd    the   depositor's   death  does  School    District,    72    Vt.  63;     Pekin  v. 

nterrupt  the  running  of  the  statute  Reynolds    (31    111.    529),   83  Am.    Dec. 

of  limitations  on  a  demand  certificate  244. 


§  142.]  MISCELLANEOUS   CAUSES   OF   ACTION.  35  I 

to  time,  subject  to  check  at  sight,  the  relation  between  the 
parties  is  not  that  of  trustee  and  cestui  que  trust,  but  of  debtor 
and  creditor.  When  received,  in  the  absence  of  any  express 
stipulation  to  the  contrary,  the  money  at  once  becomes  the  prop- 
erty of  the  bank,  and  the  bank  becomes  the  debtor  of  the  depos- 
itor, under  an  implied  contract  to  discharge  the  indebtedness  by 
honoring  the  checks  drawn  thereon  by  the  depositor,1  and  also  to 
repay  on  the  demand  of  the  depositor  any  balance  which  may  be 
due  at  the  time  of  demand.2  This  rule  does  not  apply  where  the 
thing  deposited  is  a  commodity  such  as  "Confederate  notes," 
and  the  agreement  was  that  the  collection  should  be  made  in  like 
notes;3  nor  does  it  apply  to  lands  or  other  securities  or  packages 

than  was  to  be  derived  from  the  words,  "  with  interest  at  the  rate  of  seven  per 
cent  on  call  and  ten  per  cent  "  per  annum  is  payable  on  demand,  and  therefore 
due  immediately.  So  also  in  Illinois.  Brahm  v.  Adkins,  77  111.  263;  Adams  v. 
Orange  Co.  Bank,  17  Wend.  (N.  Y.)  514;  Girard  Bank  v.  Bank  of  Penn  Town- 
ship, 39  Penn.  St.  92;  Brummagim  v.  Tallant,  29  Cal.  503.  And  a  certificate  of 
deposit  payable  "  on  return  of  this  certificate  "  is  payable  on  demand.  Tripp 
v.  Curtenius,  36  Mich.  494.  The  demand  need  not  be  made  by  the  depositor 
in  person.  Bank  of  Kentucky  v.  Wister,  2  Pet.  (U.  S.)  318.  A  demand  is  not 
necessary  after  the  bank  has  rendered  an  account  claiming  it  as  paid.  Bank 
of  Missouri  v.  Benoist,  10  Mo.  519.  And  consequently  the  statute  would  run 
from  the  time  when  by  its  acts  the  bank  had  rendered  a  demand  unnecessary 
(probably),  or  when  it  has  given  the  depositor  notice  that  his  claim  will  not  be 
paid.     Farmers'  Bank  v.  Planters'  Bank,  10  G.  &  J.  (Md.)  422. 

1  Bank  of  the  Republic  v.  Mills,  10  Wall.  (U.  S.)  152;  Buchanan  Farm  Oil  Co. 
v.  Woodman,  1  Hun  (N.  Y.),  639;  Dawson  v.  Real  Estate  Bank,  5  Ark.  283; 
Foster  v.  Essex  Bank,  17  Mass.  479;  Coffin  v.  Anderson,  4  Blackf.  (Ind.)395; 
Bank  of  Kentucky  v.  Wister,  2  Pet.  (U.  S.)  318;  Albany  Commercial  Bank  v. 
Hughes,  17  Wend.  (N.  Y.)  94;  Keene  v.  Collier,  1  Met.  (Ky.)  415;  Corbett  v. 
Bank  of  Smyrna,  2  Harr.  (Del.)  235;  Matter  of  Franklin  Bank,  1  Paige  (N.  Y.) 
Ch.  249;  Graves  v.  Dudley,  20  N.  Y.  76;  Marsh  v.  Oneida  Central  Bank,  34 
Barb.  (N.  Y.)  298;  Lund  v.  Seamen's  Savings  Bank,  37  Id.  129;  Wray  v.  Tus- 
kegee  Ins.  Co.,  34  Ala.  58;  Bank  of  Northern  Liberties  v.  Jones,  42  Penn.  St. 
536;  Downes  v.  Phenix  Bank,  6  Hill  (N.  Y.)  297;  Chapman  v.  White,  6  N.  Y. 
412;  Ellis  v.  Linck,  3  Ohio  St.  66.  It  is  held  that  a  bank,  having  without  objec- 
tion received  the  bills  of  other  banks,  without  diminution  or  discount,  notwith- 
standing that  at  the  time  of  the  deposit,  or  subsequently  thereto,  they  were 
worth  less  than  par,  is  liable  to  pay  the  par  value  therefor.  Marine  Bank  of 
Chicago  v.  Chandler,  27  111.  525.  The  Bank  of  Kentucky  v.  Wister,  supra,  is  a 
strong  case  upon  this  point. 

2  Boyden  v.  Bank  of  Cape  Fear,  65  N.  C.  13.  And  this  rule  is  applied  between 
banks  where  one  becomes  a  depositary  for  another.  Phelan  v.  Iron  Mountain 
Bank,  16  Bankr.  Reg.  (U.  S.)  30S. 

3  Planters'  Bank  v.  Union  Bank,  16  Wall.  (U.  S.)  484;  Ruffin  v.  Commission- 
ers, etc.,  69  N.  C.  498;  Lilly  v.  Same,  id.  300. 


352  STATUTES    OF    LIMITATION.  [CHAP.    XIII. 

of  money  deposited  with  it  under  a  special  contract  that  the  same 
shall  be  returned.1  But,  while  the  bank  becomes  a  debtor  to  the 
extent  of  the  deposit  it  is  not  liable  to  pay  interest  thereon  in  the 
absence  of  any  contract  to  that  effect.2  Where  money  is  paid 
into  court,  and  is  placed  in  the  custody  of  the  clerk  or  other 
officer  designated  by  law  to  have  the  custody  of  it,  the  statute 
does  not  begin  to  run  against  the  party  mutually  entitled  thereto 
until  a  demand  has  been  made  for  the  money.3  And  the  same 
rule  has  been  applied  where  money  has  been  paid  to  a  commis- 
sioner in  equity. 4 

Sec.  142^.  Money  received  by  one  for  use  of  another.  —  Where 
money  is  received  by  one  to  and  for  the  use  of  another,  under 
such  circumstances  that  it  is  the  duty  of  the  former  to  pay  it  over, 
an  action  for  money  had  and  received  may  be  brought  to  recover 
it  without  a  demand,  and  the  statue  of  limitations  begins  to  run 
from  the  day  of  the  receipt  of  the  money.  A  mortgagee  who 
has  received  moneys,  the  proceeds  of  sale  of  the  mortgaged  prop- 
erty, is  not  trustee  of  an  express  trust ;   if  in  any  sense  a  trustee, 

1  Hale  v.  Rawallie,  8  Kan.  136;  Smith  v.  First  National  Bank,  og  Mass.  605; 
Lancaster  Co.  Nat.  Bank  v.  Smith   62  Penn.  St.  47;  Maury  v.  Coyle,  34  Md.  235. 

2  Parkersburg  Nat.  Bank  v.  Als,  5   W.  Va.  50. 

3  In  Lynch  v.  Jennings,  44  Ind.  276,  an  action  was  brought  for  the  specific  per- 
formance of  a  contract  to  convey  certain  lands.  In  his  complaint  A.  alleged  a 
tender  and  refusal  of  the  purchase-money,  and  brought  it  into  court,  and  it 
remained  in  the  hands  of  the  clerk.  After  years  of  litigation  a  final  decree  was 
entered  in  A.'s  favor.  The  executors  of  B.  then  demanded  the  money  of  the 
administrators  of  the  clerk,  who  had  died,  and  on  their  refusal  to  pay  brought 
an  action  for  its  recovery.  The  court  held  that  the  statute  did  not  begin  to  run 
in  such  cases  until  a  demand  upon  the  defendants  for  the  money. 

4  Heriot  v.  McCauley,  Riley  (S.  C.)  Ch.  19.  In  Viets  v.  Union  Nat.  Bank  of 
Troy,  101  N.  Y.  563,  it  was  held  that  while  a  check  drawn  by  a  depositor  against 
a  general  bank  accunt  does  not  operate  as  an  assignment  of  so  much  of  the 
account,  it  authorizes  the  payee,  or  one  to  whom  he  has  indorsed  and  delivered 
it,  10  make  a  demand,  and  a  refusal  of  the  bank  to  pay  on  presentation  gives 
the  drawer  a  right  of  action,  in  case  he  has  funds  in  bank  to  meet  the  check 
and  the  refusal  was  without  his  authority;  and  that  the  implied  contract 
between  a  bank  and  its  depositors  is  that  it  will  pay  the  deposits  when  and  in 
such  sums  as  are  demanded,  the  depositor  having  the  election  to  make  the 
whole  payable  at  one  time  by  demanding  the  whole,  or  in  instalments  by 
dem  lading  portions;  and  whenever  demand  is  made  by  presentation  of  a  genu- 
ine check  in  the  hands  of  a  person  entitled  to  receive  the  amount  thereof,  for  a 
portion  of  the  amount  on  deposit,  and  payment  is  refused,  a  cause  of  action 
imrm-'li  iteiy  arises,  and  the  statute  begins  to  run  as  against  the  instalment  so 
in  ide  due  and  payable 


§  I43-]  MISCELLANEOUS   CAUSES   OF   ACTION.  353 

it  is  simply  an  implied  trust,  and,  as  to  the  liability  growing  out 
of  such  a  trust,  the  ordinary  rules  of  limitation  apply.1 

SEC.    143.   Money  misappropriated When  money  is  paid  to 

a  person  for  a  special  purpose,  and  is  by  him  applied  to  another, 
the  statute  begins  to  run  from  the  date  of  such  misappropriation. 
Thus,  where  a  county  treasurer,  instead  of  applying  taxes 
assessed  on  the  property  of  a  railroad  corporation,  in  a  town,  to 
the  payment  or  redemption  of  bonds  of  the  town,  issued  in  aid 
of  the  construction  of  the  road  of  such  corporation,  as  required 
by  the  act  of  1869,  as  amended  in  1871,  applied  them  in  payment 
of  county  and  State  taxes,  with,  and  as  part  of,  other  moneys, 
raised  by  the  town  for  those  purposes,  it  was  held  that  an  action, 
as  for  money  had  and  received,  was  maintainable  on  behalf  of 
the  town  against  the  county  to  recover  the  money  so  misappro- 
priated ;  that  the  liability  included  as  well  the  portion  of  the 
funds  applied  in  payment  of  the  State  taxes  as  that  applied  for 
other  county  purposes;  also,  that  the  action  was  properly  brought 
by  the  supervisor  of  the  town  in  his  name  as  its  representative. 
The  cause  of  action  in  such  case  arises  when  the  misappropria- 
tion is  made,2  the  statute  then  begins  to  run  against  it,  while 
every  duty  imposed  upon  a  public  officer  is  in  the  nature  of  a 
trust,  persons  injured  by  a  violation  of  the  duty  for  which  they 
may  maintain  an  action  of  law,  must  pursue  that  remedy  within 
the  period  of  limitation  of  legal  actions;  and  the  fact  that  the 
supervisors  of   the  town  for  the  period  of   fourteen  years  were 

1  Mills  v.  Mills,  115  N.  Y.  80.  In  this  case  T.,  the  plaintiff's  intestate,  deeded 
certain  lands  to  the  defendant,  and  assigned  to  him  a  mortgage  as  security  for 
indebtedness,  with  the  understanding  that  the  latter  might  sell  the  lands,  col- 
lect the  mortgage,  and  reimburse  himself,  by  agreeing  to  re-convey  on  pay- 
ment of  the  debt  and  expenses  and  all  subsequent  loans.  During  the  life  of  T., 
who  died  in  1S71,  defendant  sold  all  the  lands  and  received  the  proceeds,  except 
one  item,  which  was  received  in  1872.  In  an  action  brought  in  1S81,  for  an 
accounting  and  payment  over  of  any  surplus,  held,  that  the  proceeds  of  the  lands 
which  came  to  defendant's  hands  after  he  had  been  fully  reimbursed,  were 
received  by  him  to  and  for  the  use  of  T. ;  it  was  his  duty  at  once  to  pay  them 
over,  and  upon  his  failure  to  do  so,  he  was  liable  without  demand;  the  action 
was  barred;  that,  by  the  six  years'  limitation,  even  though  an  accounting  was 
required,  as  whatever  might  be  the  form  of  the  action  the  legal  rule  of  limita- 
tions applied;  and  that,  as  there  was  no  unlawful  interference  by  him  with  the 
estate  of  the  intestate  after  his  death,  the  defendant  could  not  be  held  as 
executor  de  son  tort. 

5  Strough  v.  Supervisors,  119  N.  Y.  212;   50  Hun,  54. 
[stats,  of  lim.  —  23.] 


354  STATUTES   OF    LIMITATION.  [CHAP.   XIII. 

apprised  from  year  to  year,  while  sitting  as  members  of  the  board 
of  supervisors  of  the  county,  of  the  misappropriation,  and  made 
no  objection  thereto,  did  not  estop  the  town  from  claiming  a 
repayment  of  the  money. 

A  town  cannot  be  estopped  by  the  neglect  of  its  supervisors  to 
assert  a  claim  against  the  county,  the  grounds  of  which  are 
equally  known  to  all  the  members  of  the  board  of  supervisors. 
A  county  treasurer  in  the  payment  of  State  taxes  to  the  State 
comptroller  acts  as  agent  for  the  county,  and  pays  on  its  behalf.1 

SEC.    143  a.    Forged  or  Invalid  Instruments.  Where   a   bank 

pays  a  draft  or  check  drawn  upon  it,  payable  to  the  order  of  A., 
to  an  indorsee  thereof,  and  it  subsequently  transpires  that  the 
indorsement  thereon  was  forged,  the  statute  does  not  run  against 
its  claim  for  indemnity  against  the  indorsee  until  it  has  been 
notified  by  the  drawer  of  his  intention  to  insist  on  the  defect  of 
title  and  cancel  the  credit  given  it  on  the  draft.  Thus,2  where 
the  United  States  Treasurer  in  1867,  made  a  draft  on  the  First 
National  Bank  of  B.  payable  to  the  order  of  O.,  the  indorsement 
of  O.  was  forged,  and  the  check  was  sent  by  a  third  party  to  the 
M.  bank  for  collection.  The  M.  bank  indorsed  it  and  sent  it 
to  the  drawee,  by  which  it  was  paid  and  sent  to  the  United 
States  Treasury,  where  it  was  credited  to  the  drawee.  In  1877 
the  United  States  sued  the  drawee  for  the  amount  of  the  draft 
upon  the  ground  that  the  indorsement  was  forged ;  of  which  suit 
the  M.  bank  was  notified,  and  employed  counsel  in  defending 
the  suit.  Judgment  was  rendered  against  the  drawee.  In  an 
action  by  the  drawee  commenced  against  the  M.  bank,  after  it 
had  paid  the  judgment  to  the  United  States,  the  M.  bank  set 
up  the  statute  of  limitations.  The  court  held  that  the  action 
was  not  barred,  as  the  statute  did  not  begin  the  run  at  the  time 
of  the  payment  of  the  draft,  nor  until  the  United  States  elected 
to  insist  on  the  defect  of  title  and  cancel  the  credit  given  to  the 
drawee  on  the  draft.3 

1  Ibid.;  Bridges  v.  Board  of  Supervisors,  92  N.  Y.  570,  distinguished,  so  far  as 
ii  relates  to  the  liability  of  the  county  for  the  portion  of  the  fund  applied  in  pay- 
ment of  State  taxes. 

•'  Merchants'  Nat.  Bank  v.  First  Nat.  Bank,  3  Fed.  Rep.  66. 

3  The  court  relied  upon  Cowper  v.  Godmond,  9  Bing.  748.  In  that  case  the 
question  was,  whether  a  plea  of  the  statute  of  limitations  was  a  bar  to  an 
action  for  money  had  and  received  to  recover  the  consideration  money  of  a  void 


§  144- ]  MISCELLANEOUS   CAUSES   OF   ACTION.  355 

SEC.  144.  Money  had  and  received. — Where  an  action  is 
brought  for  money  had  and  received  by  the  defendant  to  his  use, 
the  statute  only  begins  to  run  from  the  time  when  it  was  received 
by  him.  Thus,1  when  a  municipal  corporation,  acting  through 
its  officers  in  the  execution  of  a  power  conferred  upon  it  to  col- 
lect a  tax  assessed  upon  a  particular  citizen,  enforces  its  collection 
out  of  the  property  of  another,  in  nowise  liable  therefor,  and 
appropriates  the  proceeds  of  collection  to  its  own  use,  with  full 
knowledge  of  the  illegality  of  the  proceedings,  it  becomes  liable 
to  the  owner  for  the  spoliation  of  his  property.  In  an  action  to 
recover  of  the  defendant  the  money  received  into  its  treasury 
through  proceedings  taken  to  collect  a  tax  assessed  upon  the 
stockholders  of  a  bank,  doing  business  within  its  corporate  limits, 
it  appeared  that  the  property  levied  upon  and  sold  by  the  defend- 
ant was  not  the  property  of  the  stockholders,  but  of  the  bank. 
By  the  defendant's  charter,  its  mayor  is  its  executive  head  and 
clothed  with  the  duty  and  power  of  supervision  of  it  and  its  offi- 
cers in  all  departments.  Its  treasurer  and  tax  receiver  are 
intrusted  with  the  duty  and  power  of  collecting  taxes  and  keeping 
the  moneys  for  the  defendant.  The  collector  was  directed,  when 
he  received  the  warrant  from  the  treasurer  and  tax  receiver,  to 
go  to  the  bank  and  levy  upon  everything  in  the  bank,  to  make  the 
levy  and  sale  of  its  property,  and  the  mayor  was  so  informed, 
and  the  treasurer  received  the  tax  from  the  collector,  knowing 
that  it  was  obtained  by  such  levy  and  sale.  It  was  held  that  the 
plaintiff  was  entitled  to  recover;  that  the  proceedings  of  the 
defendant's  officers  in  collecting  the  tax  were  unlawful;  and  that 
knowledge  thereof  was  justly  imputable  to  the  defendant ;  and 
that  the  defendant's  knowledge  of  the  illegal  levy  and  sale  relieved 
the  plaintiff  from  demanding  the  money  before  bringing  this 
action,  and  that  the  action,  being  for  money  had  and  received, 

annuity,  when  the  annuity  was  granted  more  than  six  years  before  the  action 
was  brought,  but  was  treated  by  the  grantor  as  an  existing  annuity  within  that 
time.  "  That  question,"  said  the  courl,  "  depends  upon  another:  At  what  time 
did  the  cause  of  action  arise?  The  cause  of  action  comprises  two  steps:  the 
first  is  the  original  advance  of  the  money  by  the  grantee;  the  second  is  the 
grantor's  election  to  avail  himself  of  the  defect  in  the  memorial  of  the  annuity. 
The  cause  of  action  was  not  complete  until  the  last  step  was  taken."  See  Ripley 
v.  Withee,  27  Tex.  14,  where  it  was  held  that  an  action  for  damages  arising 
from  the  sale  of  a  forged  land-warrant  did  not  accrue  until  the  certificate  had 
been  presented  to  Ihe  Court  of  Claims  and  rejected  by  it. 
1  Teali  v.  Syracuse,  120  N.  Y.  184. 


356  STATUTES   OF   LIMITATION.  [CHAP.   XIII. 

the  statute  of  limitation  did  not  begin  to  run  until  the  defendant 
had  received  the  money. 

SEC.  144  a.  Implied  Warranty.  —  Where  property  is  sold 
under  such  circumstances  that  the  law  will  imply  a  warranty,  the 
statute  begins  to  run  from  the  date  of  the  warranty.  Thus, 
where  the  payee  of  a  negotiable  note  indorses  the  same  the  law 
raises  an  implied  warranty  that  the  note  was  given  for  a  valuable 
consideration,  and  upon  this  warranty  an  action  for  its  breach 
accrues  and  the  statute  begins  to  run  at  once.1  In  the  case  of  a 
contract  for  the  mutual  exchange  of  lands  which  contains  nothing 
from  which  it  can  be  inferred  that  one  conveyance  was  to  precede 
the  other,  the  law  implies  that  the  conveyances  are  to  be  made 
concurrently,  and  that  the  mutual  covenants  of  the  parties  are 
dependent,  and  that  the  statute  does  not  begin  to  run  thereon 
against  the  vendor  until  he  has  performed  by  giving  a  deed,  nor 
against  the  purchaser  until  he  has  made  a  tender  of  the  price.2 
Where  a  party  transfers  a  note,  knowing  it  to  be  affected  by 
usury,  to  one  who  is  ignorant  of  the  fact,  he  instantly  becomes 
liable  to  the  purchaser  for  the  deceit;  but  the  statute  only  begins 
to  run  from  the  time  the  fraud  was  discovered.3  Upon  an  implied 
warranty  of  title  to  chattels  sold,  it  has  been  held  that  the  statute 
does  not  begin  to  run  until  the  vendee  has  been  disturbed  in  his 
title.4  (a) 

SEC.  145.  Sureties,  Indorsers,  &e.  —  Where  a  surety  is  com- 
pelled to  pay  a  debt,  the  statute  begins  to  run  against  his 
claim  from  the  day  of  such  payment,  and  not  from  the  date  of 
the  original  obligation,5  and  this  is  also  the  rule  as  to  contribution 

1  Blethen  v.  Lovering,  58  Me.  437. 
s  Brennan  v.  Ford,  46  Cal.  7. 

3  Persons  v.  Jones,  12  Cya.  371. 

4  Gross  v.  Kierski,  41  Cal.  in. 

6  Hammond  v.  Myers,  30  Tex.  375;  Burton  v.  Rutherford,  49  Mo.  255;  Reeves 
v.  Pulliam,  7  Bax.  (Tenn.)  119;  Thayer  v.  Daniels,  no  Mass.  345;  Barnsback 
v.  Reiner,  8  Minn.  59;  Walker  v.  Lathrop,  6  Iowa,  516;  Thompson  v.  Stevens.  2 
N.  &  M.  (S.  C.)  493;  Scott  v.  Nichols,  27  Miss.  94.  In  Wesley  Church  v. 
Moore,  [O   Penn   St.   273,  it   was  held   that  where  the   property  of  a  surety  was 

A  warranty  of  goods  sold,  if  not  for  such  breach  must  be  brought  within 

fulfilled,    is    usually    to    be    treated   as  the  statute  lime  for  suing  on  contracts. 

broken  when  the  goods  are  delivered,  Bogardus    v.    Wellington,   27  Ontario 

aw  1    in  th     absence  of  fraud,  an  action  App.  530 


§   I45-]  MISCELLANEOUS   CAUSES   OF   ACTION.  357 

sold  on  an  execution  to  pay  the  debt,  the  statute  began  to  run  from  the  date  of 
the  sale.  Ponder  v.  Carter,  12  Ired.  (N.  C.)  L.  242;  Hale  v.  Andrews,  6  Caines 
(N.  Y.),  225;  Garrett  v.  Garrett,  27  Ala.  687;  Preslar  v.  Stallsworth,  37  id. 
402;  Walker  v.  Lathrop,  6  Clarke  (Iowa),  516;  Bennett  v.  Cook,  45  N.  Y.  268; 
Scolt  v.  Nichols,  27  Miss.  94.  The  law  implies  a  promise  on  the  part  of  the 
principal  to  reimburse  the  surety  and  the  action  is  upon  this  implied  promise. 
Ward  v.  Henry,  5  Conn.  596;  Powell  v.  Smith,  8  Johns.  (N.  Y.)  249;  Hassinger 
v.  Solms,  5  S.  &  R.  (Penn.)  8;  Gibbs  v.  Bryant,  1  Pick.  (Mass.)  118;  Bunce  v. 
Bunce,  Kirby  (Conn.)  137;  Hulett  v.  Soullard,  26  Vt.  295;  Smith  v.  Hay  ward, 
5  Me.  504;  Lonsdale  v.  Cox,  7  T.  B.  Mon.  (Ky.)  405;  Appleton  v.  Bascom,  3 
Met.  (Mass.)  169;  Holmes  v.  Weed,  19  Barb.  (N.  Y.)  12S.  It  is  not  necessary 
that  he  should  pay  in  money;  it  is  sufficient  if  he  pays  in  land  or  personal  prop- 
erty. Bonney  v.  Seely,  2  Wend.  (N.  Y.)  481;  Randall  v.  Rich,  11  Mass.  498; 
Ainslee  v.  Wilson,  7  Cai.  (N.  Y.)  662.  But  the  implied  promise  is  only  to  indem- 
nify the  surety;  consequently  it  secures  a  discharge  of  the  debt  for  less  than 
its  amount.  He  can  recover  no  more  than  he  paid;  and,  if  he  paid  the  debt  in 
depreciated  currency  at  par,  he  can  only  recover  the  amount  which  it  was  worth 
at  Ihe  time  of  payment.  Owings  v.  Owings,  3  J.  J.  Mar.  (Ky.)  590;  Hall  v. 
Creswell,  12  G.  &  J.  (Md.)  36;  Jordan  v.  Adams,  7  Ark.  348;  Crozin  v.  Adams, 
4  J.  J.  Mar.  (Ky.)  514.  So  he  may  sue  at  once  if  he  has  taken  up  the  original 
note,  and  given  his  own  in  lieu  of  it,  which  has  been  accepted  in  payment. 
Downer  v.  Baxter,  30  Vt.  467;  Elwood  v.  Deifendorf,  5  Barb.  (N.  Y.)  39S.  But 
in  Indiana  it  is  held  that  he  can  maintain  no  action  until  he  has  actually  paid 
a  note  given  in  lieu  of  the  original  note,  Pitzer  v.  Harmon,  8  Blackf.  (Ind.)  112; 
Romine  v.  Romine,  59  Ind.  346;  even  though  it  was  secured  by  mortgage, 
Bennett  v.  Buchanan,  3  Ind.  47.  A  demand  is  not  necessary.  The  statute 
attaches  at  once  upon  payment.  Odlin  v.  Greenleaf,  3  N.  H.  270;  Sikes  v. 
Quick,  7  Jones  (N.  C.)  L.  19. 

In  Slone  v.  Hammell,  83  Cal.  547,  McFarland,  J.,  in  a  well-considered  opinion, 
says:  "  The  general  rule  is,  undoubtedly,  that  a  surety  can  recover  of  the  prin- 
cipal only  the  amount  or  value  which  the  surety  has  actually  paid.  If  he  has 
paid  in  depreciated  bank  notes  taken  at  par,  he  can  recover  only  the  actual 
value  of  the  bank  notes  so  paid  and  received.  If  he  has  paid  in  property,  he 
can  recover  only  the  value  of  the  property.  If  he  has  compromised,  he  can 
recover  only  what  the  compromise  cost  him.  The  rule  is  that  he  shall  not  be 
allowed  to  "  speculate  out  of  the  principal."  Brandt,  Sur.,  §  182,  and  cases 
there  cited;  Estate  of  Hill,  67  Cal.  243. 

Perhaps  a  preponderance  of  authority,  to  the  point,  is  that  if  a  surety,  by 
giving  his  negotiable  promissory  note,  satisfies  the  claim  of  the  creditor,  and 
extinguishes  the  debt  of  the  principal  to  the  creditor,  he  may  recover  from  the 
principal  the  amount  of  the  debt  without  showing  that  he  has  paid  his  promis- 
sory note. 

But  the  authorities  are  not  uniform  upon  the  subject.  In  Indiana,  North 
Carolina,  and  some  other  Stales,  it  is  held  that  the  surety  cannot  recover  of  the 
principal  until  he  has  paid  the  money,  and  that  the  giving  of  a  note  is  not  suffi- 
cient. Brisendine  v.  Martin,  1  Ired.  L.  (N.  C.)286;  Nowland  v.  Martin,  id.  307; 
Romine  v.  Romine,  59  Ind.  346. 

Many  of  the  cases  hold  that,  if  the  surety  discharges  the  debt  by  a  negotiable 
note,  he  cannot  maintain  an  action  against  the  principal,  while,  if  he  does  so 
by  means  of  a  bond,  or  any  non-negotiable  instrument,  he  cannot,  upon  the 


358  STATUTES    OF    LIMITATION.  [CHAP.   XIII. 

against  a  co-surety.1  (#)  No  action,  however,  can  be  maintained 
unitl  the  surety  has  actually  paid  the  debt.  The  fact  that  a 
judgment  has  been  rendered  against  him,  and  that  he  has  been 
committed  to  jail  upon  an  execution  thereon,  does  not  entitle 
him  to  an  action  against  the  principal  for  money  paid,  &c.2 
Where  money  is  paid  by  one  person  for  another,  and  no  time  is 
fixed  for  payment,  the  statute  attaches  from  the  date  of  its  pay- 
ment.3 The  statute  begins  to  run  against  the  right  of  sureties  to 
be  subrogated  to  the  payee's  right  to  securities,  &c,  from  the 

theory  that  a  negotiable  note  is  analogous  to  money  —  a  distinction  which  is 
founded  upon  no  apparent  good  reason.  Boulware  v.  Robinson,  8  Tex.  372, 
58  Am.  Dec.  117;  Peters  v.  Barnhill,  1  Hill  (S.  C.)  234. 

1  Singleton  v.  Townsend,  45  Mo  379;  Wood  v.  Leland,  1  Met.  (Miss. )387;  Peters 
v.  Barnhill,  1  Hill  (S.  C.)  234;  Maxey  v.  Carter,  10  Yerg.  (Tenn.)  521;  Lowndes  v. 
Pinckney,  1  Rich.  (S.  C.)Eq.  155;  Sherwood  v.  Dunbar,  6  Cal.  53:  Knolts  v.  Butler. 
10  Rich.  (S.  C.)  Eq.  143.  An  action  for  contribution  arises  at  once  upon  the  pay- 
ment of  the  whole  debt  by  one  surety  against  his  co-sureties  for  the  proportion 
of  the  debt  each  should  pay.  Whitman  v.  Gaddy,  7  B.  Mon.  (Ky.)  591;  Paulin 
v.  Kaighn,  29  N.  J.  L.  480;  Labeaume  v.  Sweeney,  17  Mo.  153;  Samuel  v. 
Zachary,  4  Ired.  (N.  C.)  L.  377;  Stallworth  v.  Preslar,  34  Ala.  505,  and  37  id. 
402;  Chaffee  v.  Jones,  19  Pick.  (Mass.)  260;  Lee  v.  Forman,  3  Met.  (Ky.)  114; 
Pinkston  v.  Taliaferro,  9  Ala.  547;  M'Donald  v.  Magruder,  3  Pet.  (U.  S.)  470; 
Fletcher  v.  Jackson,  23  Vt.  5S1;  Foster  v.  Johnson,  5  id.  64;  Stout  v.  Vause,  1 
Rob.  (Va.)  169;  Cage  v.  Foster,  5  Yerg.  (Tenn.)  261.  And  he  is  not  first  bound 
to  pursue  the  principal.     Caldwell  v.  Roberts,  1  Dana  (Ky.)  355. 

The  rule  is  founded  on  the  reason  that  if  the  surety,  by  giving  his  own  obli- 
gation, discharges  the  original  debt  of  the  principal,  the  latter  is  as  much  bene- 
fited as  if  he  had  discharged  it  by  actually  paying  the  money.  Its  weakness 
lies  in  the  possibility  of  the  surety  recovering  the  whole  amount  of  the  princi- 
pal, and  never  paying  his  own  note,  thus  violating  the  cardinal  rule  that  the 
surety  shall  not  speculate  out  of  the  principal.  But,  if  we  assume  the  rule  to 
be  as  first  above  stated,  it  is  not  so  clearly  commendable  as  to  deserve  pushing 
further  than  adjudicated  cases  have  already  carried  it;  and  in  all  cases  to  which 
our  attention  has  been  called  the  rule  has  been  enforced  against  the  principal  in 
favor  only  of  the  surety  who  has  extinguished  the  debt  to  the  original  creditor. 
Chipman  v.  Morrill,  20  Cal.  136. 

8   Rodman  v.  Hedden,  10  Wend.  (N.  Y.)  498. 

3  Bowman  v.  Wright,  7  Bush  (Ky.),  375. 

(n)  The   liability  of   the   surety  must  right   of   subrogation   as   to    securities 

first  be  settled;  and   the  claim  for  con-  held  by  another  arises  upon  an  implied 

tri billion    is   not   affected    by    the    fact  contract  and    is   within    the  two  years 

that   the  statute  has  already  run  as  be-  statute  of  limitation,  which  statute  will 

twcen   the    principal    creditor    and  the  never  be  superseded  in  equity  in  favor 

co-surety.     Wolmershausen  v.  Gullick,  of    one    seeking    subrogation    to  such 

[1893]    2    Ch.    5 14.     See     Robinson    v.  a    lien.       Darrow     v.    Summerhill,    93 

Harkin,    [1896]    2    Ch,   415;   Martin   t.  Texas.   92,   105.     See  Tate  v.  Winfree 

Frantz,    127   Penn.  St.   389;    Fullerton  (Va.),  37  S.  E.  956. 
v.    Bailey,    17    Utah,    85.      In    Texas   a 


§   I45-]  MISCELLANEOUS   CAUSES   OF   ACTION.  359 

time  of  payment  of  the  debt  by  them.1  (a)  So  strict  is  this  rule 
and  so  rigidly  is  it  adhered  to  that,  even  when  a  surety  procures 
an  extension  of  time  from  the  holder,  and  gives  collateral  secur- 
ity, and  ultimately  pays  the  debt,  it  is  held  that  the  statute  does 
not  begin  to  run  against  him  until  he  has  actually  paid  the  debt.2 
The  rule  may  be  said  to  be  that  so  long  as  any  liability  on  the 
maker's  part  upon  the  original  debt  remains  the  surety  has  no 
right  of  action  against  him,  and  consequently  the  statute  does 
not  begin  to  run  against  him ;  but,  although  the  surety  may  not 
have  paid  the  debt  in  money,  yet  if  he  has  in  any  manner  assumed 
the  debt,  so  that  the  maker's  liabilty  upon  it  is  at  end,  from  that 
time  the  statute  begins  to  run  against  the  surety.3  If  the  note 
or  obligation  is  payable  by  instalments,  the  statute  begins  to  run 
against  the  surety  from  the  time  when  each  instalment  was  paid 
by  him.4  But  if  the  note  is  not  so  payable,  and  the  surety  in 
fact  pays  the  note  by  instalments,  the  statute  does  not  begin  to 
run  from  the  date  of  each  payment,  but  from  the  date  of  the  last 
payment  made  by  him,  in  liquidation  of  the  note.5  When  two 
persons  execute  to  each  other  written  instruments  in  the  form  of 
deeds,  which  are  defective  as  conveyances  for  the  want  of  attes- 
tation or  acknowledgment,  each  instrument  being  the  considera- 
tion of  the  other,  and  possession  is  given  and  taken  by  each,  the 
statute  at  once  commences  to  run,  and,  after  the  lapse  of  the 
statutory  period,  perfect  a  title  which  will  maintain  or  defeat  an 
action  of  ejectment.6 

Where  a  mortgage  is  given  by  the  maker  of  a  note  to  a  person 
who  becomes  surety  thereon,  conditioned  that  if  the  maker  pays 
the  note  and  saves  the  surety  harmless  from  all  demands  upon  it 
the  conveyance  should  be  void,  the  statute  does  not  begin  to  run 
against  the  mortgagee  until  he  has  actually  paid  the  note  or  some 
part  of  it,  and  the  note  is  discharged.7     The  same  rule  prevails 

1  Bennett  v.  Cork,  45  N.  Y.  268 
8  Norton  v.  Hall,  41  Vt.  471. 

3  Hitt  v.  Sharer,  34  111.  9. 

4  Bullock  v.  Campbell,  9  G.  &  J.  (Md.)  182. 
6  Barnsback  v.  Reiner,  8  Minn.  59. 

6  Hall  v.  Caperton,  87  Ala.  285. 

1  M'Lean  v.  Ragsdale,  31  Miss.  701. 

In  Schoener  v.  Lissauer,  107  N.  Y.   in,  it  was  held  that  the  provision  of  the 

(a)  The  right  of  subrogation,  when  tion  of  the  note  or  other  cause  of  action 
merely  incidental  to  the  relief  sought  to  the  statute  of  limitations.  Camp- 
in    an    action,  does   not  affect   Ihe  rela-     bell  v.  Campbell  (Cal.)  65  Pac.  134. 


3^0  STATUTES    OF   LIMITATION.  [CHAP.   XIII.. 

as  to  indorsers.  The  statute  begins  to  run  against  them  from 
the  time  when  they  actually  paid  the  debt,  and  not  from  the 
time  when  they  become  liable  to  pay  it.1  (a)  But,  unless  the  surety 
or  indorser  pays  the  note  within  the  time  limited  by  statute,  he 
cannot,  by  a  payment  made  by  him  afterwards,  make  the  maker 
liable  to  him  therefor,  especially  in  those  States  where  by  statute 
payment  or  acknowledgment  by  one  co-maker,  &c,  does  not 
take  the  debt  out  of  the  statute  as  to  the  others.2  Where  one 
sued  as  indorser  sets  up  in  defense  that  the  transfer  was  made  to 
the  plaintiff  to  deprive  him  of  the  defense  of  want  of  considera- 
tion, the  indorser's  cause  of  action  against  the  last  indorser  arises 
from  the  date  of  judgment.3  If  a  surety  or  indorser  pays  a  note 
before  it  becomes  due,  his  right  of  action  does  not  accrue  until 
the  note  by  its  terms  becomes  due;4  as  a  surety  cannot  change 
the  legal  relations  of  the  maker  to  the  note  by  any  action  of  his 
before  it  becomes  payable,  nor  by  forestalling  its  payment  can 
he  acquire  any  rights  against  the  maker  which  the  holder  of  the 
note  did  not  possess. 

The  rule  that  a  right  of  action  accrues  to  the  surety  from  the 
time  he  pays  the  money,  and  not  from  the  time  when  the  origi- 
nal debt  becomes  payable,  is  subject  to  the  exception,  that  he 
must   have   paid   the   original   debt   before   the   statute  had  run 

Code,  applying  a  six  years'  limitation  to  actions  "  to  procure  a  judgment  other 
than  for  a  sum  of  money  on  the  ground  of  fraud,  in  a  case,"  formerly  "  cogniz- 
able by  the  Court  of  Chancery,"  does  not  apply  to  an  action  by  the  owner  of 
the  fee  to  remove  a  cloud  upon  title  to  land,  by  the  cancellation  of  a  mortgage 
thereon,  to  which  the  owner  has  a  good  defense. 

The  right  to  bring  such  an  action  is  never  barred  by  the  statute  of  limitations. 
Ibid  ;  Solinger  v.  Earle,  82  N.  Y.  393;  and  Haynes  v.  Rudd,  102  N.  Y.  372. 

1   Pope  v.  Bowman,  27  Miss.  194. 

1  In  Williams  v.  Durst,  25  Tex.  667,  it  was  held  that  where  an  accommodation 
indorse"  pays  a  note  before  the  statute  runs  upon  it,  but  does  not  bring  suit 
until  after  the  statute  has  run  on  the  note,  he  cannot  recover  of  the  maker; 
because  he  acquires  no  greater  rights  than  the  holder  of  the  note  possessed. 

3  Price  v.  Emerson,  16  La.  An.  95. 

4  Tillotson  v.  Rose,  11  Met.  (Mass.)  299. 

I    i  A  surety  has  no  actionable  claim  same   instrument   agrees   to    pay   any 

against  his  co  sureties  for  contribution  difference  between  the  net  proceeds  of 

until   he  is  damnified   by  the   fact,  and  the  bonds  and  the  amount  due,  this  is 

it   is  actually  ascertained   that  he  has  not  a  new  and  independent  obligation 

paid    more   than    his  due  proportion  of  postponing  the  statute  until  realization 

liability,      I  \    f>arU   Snowdon,    17   Ch.  on  the  securities,  but   the  statute  runs 

D.  44;  Gardner  t.  Brooke,   [1S97]  2  I.  from    the   date   fixed   for  repayment  of 

)'    '  .      When  bonds  are  pledged  as  col-  the  loan.      ///  re  Mcllenry,  [1894J  3  Ch. 

lateral   by  a   mortgagor,    who  in   the    290. 


§  I45-]  MISCELLANEOUS   CAUSES   OF   ACTION.  361 

thereon  ;  as  otherwise,  especially  in  those  States  where  by  statute 
payment  by  one  joint  contractor  or  promisor  does  not  remove 
the  statutory  bar  as  to  the  other,  a  recovery  could  not  be  had  by 
him  if  the  original  debt  was  then  barred  as  to  the  principal 
debtor.1  When  the  principal  debtor,  by  reason  of  the  running 
of  the  statute,  has  been  released  from  any  legal  liability  to  pay 
the  debt,  a  surety  who  has  been  compelled  to  pay  it,  because,  by 
reason  of  some  statutory  exception,  the  statute  has  not  run  as  to 
him,  cannot  recover  of  the  principal  debtor.2  Instances  may 
arise  where  the  surety  has  no  redress;  as,  where  he  becomes 
surety  upon  a  note  for  an  infant,  not  given  for  necessaries.  In 
such  a  case,  if  the  infant  escapes  upon  a  plea  of  infancy,  and 
judgment  is  rendered  against  the  surety,  he  has  no  right  of 
redress  from  the  infant,  but  stands  to  the  note  and  judgment  in 
the  relation  of  principal.3  But  where  a  note  is  given  by  an  infant 
for  necessaries,  with  a  surety,  and  the  surety  pays  the  debt,  he 
has  an  immediate  right  of  action  against  the  infant  thereon,  and 
the  statute  runs  from  that  time.4  Where  there  are  two  or  more 
sureties,  and  each  pays  a  moiety  of  the  debt,  each  has  a  sep- 
arate and  distinct  cause  of  action  against  him  therefor;  conse- 
quently, in  such  a  case,  the  staute  begins  to  run  against  the  claim 
of  each  from  the  time  when  each  paid  his  share.5  The  remedy 
of  a  surety  is  the  same  whether  he  was  surety  upon  a  simple  con- 
tract or  a  specialty  debt.6  His  remedy  is  by  indebitatus  assumpsit 
for  money,  and  not  for  money  had  and  received.7 

At  the  common  law,  a  payment  made  by  the  principal  debtor 
upon  a  note  before  the  bar  of  the  statute  has  become  complete, 

1  The  law  will  not  raise  a  promise  on  the  part  of  the  principal  to  reimburse 
the  surety  where  the  surety  was  under  no  legal  obligation  to  pay.  Kimble  v. 
Cummins,  3  Met.  (Ky.)  327.  This  rule  was  adopted  in  Cocke  v.  Hoffman,  5 
Lea  (Term.)  105,  and  a  surely  who  paid  the  debt  after  it  was  barred  as  to  the 
sureties  was  held  not  entitled  to  recover  of  a  co-surety.  See  also  Campbell  v. 
Brown,  86  N.  C.  376. 

4  Stone  v.  Hammell,  83  Cal.  547. 

3  Short  v.  Bryant,  10  B.  Mon.  (Ky.)  10. 

4  Conn  v.  Coburn,  7  N.  H.  36S. 

8  Peabdoy  v.  Chapman,  20  N    H.  418. 

6  Cunningham  v.  Smith,  1  Harp.  (S.  C.)  Eq.  90;  United  States  v.  Preston,  4 
Wash.  (U.  S.  C.  C.)  446.  But  contra,  see  Shultz  v.  Carter,  Speers  (S.  C.)  Eq. 
533,  where  it  was  held  that  the  surety  could,  upon  payment  of  a  specialty  debt, 
set  it  up  as  a  specialty. 

1  Ward  v.  Henry,  5  Conn.  595;   Powell  v.  Smith,  8  Johns.  (N.  Y.)  249. 


362  STATUTES   OF   LIMITATION.  [CHAP.   XIII. 

keeps  the  debt  alive  both  as  to  himself  and  the  surety  ;  but  where 
the  payment  is  made  after  the  completion  of  the  bar  of  the  stat- 
ute, it  revives  the  debt  only  as  to  the  party  making  the  payment.1 
So  long  as  demands  secured  by  a  mortgage  are  not  barred  by 
the  statute,  there  can  be  no  laches  in  prosecuting  a  suit  upon  the 

1  Cross  v.  Allen,  141  U.  S.  52S,  where  the  court  said:  "  Under  the  Civil  Code 
of  Oregon,  the  period  of  limitation  for  promissory  notes  is  six  years;  and  it  is 
argued  that,  as  the  notes  in  this  controversy  were  not  sued  on  until  more  than 
six  years  from  the  dates  when  they  respectively  became  due,  an  action  on  them 
would  not  lie,  notwithstanding  the  fact  that  the  maker  made  payments  of  interest 
upon  them  from  time  to  time." 

At  common  law,  a  payment  made  upon  a  note  by  the  principal  debtor  before  the 
completion  of  the  bar  of  the  statute  served  to  keep  the  debt  alive,  both  as  to 
himself  and  the  surety.  Whitcomb  v.  Whiting,  2  Dougl.  652;  Burleigh  v.  Stott,  8 
Barn.  &  C.  36;   Wyatt  v.  Hodson,  S  Bing.  309;   Mainzinger  v.  Mohr,  41  Mich.  685. 

"  That  is  the  rule  in  many  of  the  States  of  this  Union  —  in  all,  in  fact,  where 
it  has  not  been  changed  by  statute.  National  Bank  of  Delavan  v.  Cotton,  53  Wis- 
31;  Quimby  v.  Putnam,  2S  Me.  419.  At  common  law,  and  in  those  Stales 
where  the  common-law  rule  prevails,  a  distinction  is  made  between  those  cases 
in  which  a  part  payment  is  made  by  one  of  several  promisors  of  a  note  before 
the  statute  of  limitations  has  aitached,  and  those  in  which  the  payment  is  made 
after  the  completion  of  the  bar  of  the  statute;  it  being  held  in  the  former  that 
the  debt  or  demand  is  kept  alive  as  to  all,  and  in  the  latter,  that  it  is  revived 
only  as  to  the  party  making  the  payment.  Atkins  v.  Tredgold,  2  Barn.  &  C. 
23;  Sigourney  v.  Drury,  14  Pick.  (Mass.)  391;  Ellicott  v.  Nichols,  7  Gill  (Md.) 
85,  and  cases  cited.  The  reason  of  this  distinction  lies  in  the  principle  that,  by 
withdrawing  from  a  joint  debtor  the  protection  of  the  statute,  he  is  subjected  to 
a  new  liability  not  created  by  the  original  contract  of  indebtedness.  "  There 
is  no  statute  of  Oregon,  so  far  as  we  have  been  able  to  discover,  changing  the 
common-law  rule  of  liability  with  reference  to  sureties.  Consequently,  under 
the  admitted  facts  of  this  case,  it  must  be  held  that  the  statute  of  limitations  of 
the  State  never  operated  as  a  bar  to  the  enforcement  of  the  original  demands 
against  both  the  principal  and  the  surety. 

"  Nor  do  we  think  the  death  of  the  surety  before  either  of  the  demands 
matured  makes  any  difference,  in  principle,  where,  as  in  this  case,  the  liability 
is  not  of  a  personal  nature,  but  is  an  incumbrance  upon  the  surety's  property. 
We  are  aware  that  there  is  authority  holding  that  payment  of  interest  by  the 
principal  debtor,  after  the  death  of  the  surety,  but  before  the  statute  of  limita- 
tions has  tun  against  the  note,  will  not  prevent  the  surety's  executors  from 
pleading  the  statute.  Lane  v.  Doty,  4  Barb.  (N.  Y.)  530;  Smith  v.  Townsend, 
o.  Rich.  (S.  C.)  L.  44;  Byles,  Bills,  §  353;  2  Parsons,  Notes  &  Bills,  659,  and 
note  /.  But  we  know  of  no  authority  extending  this  rule  to  the  representatives 
of  a  deceased  surety  whose  liability  was  not  personal  but  upon  mortgaged 
property.  On  the  contrary,  the  cases  of  Miner  v.  Graham,  and  Bank  of 
Albion  v.  Burns,  supra,  seem  to  recognize  the  doctrine  which  we  are  inclined 
to  accept.  We  conclude,  therefore,  that  the  contract  of  suretyship  in  this 
case  was  not  terminated  by  the  death  of  the  surety  before  the  maturity  of  the 
■  edness." 


§  I46.]  MISCELLANEOUS   CAUSES   OF   ACTION.  363 

mortgage  to  enforce  them.  Lamar,  J.,  says:1  "The  question 
of  laches  and  staleness  of  claim  virtually  falls  with  that  of  the 
defense  of  the  statute  of  limitations.  So  long  as  the  demands 
secured  were  not  barred  by  the  statute  of  limitations  there  could 
be  no  laches  in  prosecuting  a  suit  upon  the  mortgages  to  enforce 
those  demands.  The  mortgage  is  virtually  a  security  for  the 
debt,  and  an  incident  of  it.2  And  it  is  immaterial  that  the  failure 
to  sue  upon  the  demands  may  have  resulted  injuriously  to  the 
surety,  so  long  as  there  was  no  variation  in  the  original  contract 
of  suretyship,  either  as  respects  a  new  consideration  or  a  definite 
extension  of  time;  since  it  is  a  familiar  principle  of  law  that  the 
mere  omission  or  forbearance  to  sue  the  principal  without  the 
request  of  the  surety  will  not  discharge  the  surety."  (a) 

SEC.  146.  Contract  of  Indemnity,  Guaranties,  &e.  —  Contracts 
of  indemnity  are  so  largely  dependent  upon  the  particular  stipu- 
lation that  the  guarantor  has  made  that  no  general  rule  can  be 
given  as  to  when  his  liability  attaches  against  those  for  whom  he 
has  assumed  that  position  that  will  be  applicable  in  all  cases, 
except  that  the  statute  begins  to  run  when  the  promisee  has 
taken  all  the  requisite  steps  to  charge  him  with  liability,  and  his 
liability  under  his  contract  to  pay  the  debt  is  full  and  complete,3 
and  the  promisee  cannot  prolong  this  period  of  liability  by  any 
unreasonable  delay  in  taking  these  requisite  steps.4  A  guaranty 
has  aptly  been  termed  a  contract  to  indemnify  another  upon  a 
contingency,  and  is  in  the  nature  of  a  claim  for  unliquidated 
damages.5  They  are  either  absolute  or  contingent,6  and  the  dis- 
tinction between  them  in  this  respect  is  of  vital  importance  in 
determining  the  time  when  the  statute  begins  to  run  in  favor  of 

1  Cross  v.  Allen,  141  U.  S.  528,  537. 

2  Ewell  v.  Daggs,  108  U.  S.  143. 

3  See  Colvin  v.  Buckle,  8  M.  &  W.  680. 

*  In  Eddowes  v.  Niel,  4  Dall.  (Penn.)  133,  a  delay  of  nineteen  years  fully 
accounted  for  was  held  not  of  itself  sufficient  to  discharge  the  guarantor. 

6  Sampson  v.  Burton,  2  B.  &  B.  89. 

6  Rudy  v.  Wolf,  16  S.  &  R.  (Penn.)  79;  Woods  v.  Sherman,  71  Penn.  St.  100; 
Moakley  v.  Riggs,  19  Johns.  (N.  Y.)  69;  Sylvester  v.  Downer,  18  Vt.  32;  Alii- 
son  v.  Waldham,  24  111.  132. 

(a)  In  England  section  8  of  the  37  &  bound  thereby,  such,  e.  g.,  as  a  surety 
38  Vict.,  c.  57,  relates  not  only  to  suits  who  ioins  in  a  joint  and  several  cove- 
to  enforce  mortgage  securities  against  nant  for  payment  of  the  mortgage  debt, 
the  land,  but  also  to  suits  to  enforce  Sutton  v.  Sutton,  22  Ch.  D.  511;  Alli- 
•covenants     personally     against    those  son  v.  Frisby,  43  id.  106. 


364  STATUTES   OF   LIMITATION.  [CHAP.   XIII. 

the  guarantor.  Thus,  an  absolute  guaranty  is  one  by  the  terms 
of  which  the  guarantor  undertakes  that  another  person  shall  per- 
form by  the  time  fixed  in  the  contract,  and  upon  which  he 
becomes  liable  to  pay  the  debt  or  damages  at  maturity  upon  the 
other's  failure;  as,  "I  guarantee  the  payment  of  this  note  at 
maturity."  1  Such  a  guaranty  is  absolute  ,  and  a  right  of  action 
accrues  against  the  guarantor  immediately  upon  the  maturity  of 
the  note,  without  taking  any  steps  against  the  maker  of  the  note.2 
So  where  on  the  sale  of  goods  it  was  agreed  that  they  should 
be  paid  for  on  delivery,  and  the  defendant  signed  a  guaranty  as 
follows:  "  On  the  part  of  A.  and  B.  I  hold  myself  responsible 
with  them  on  the  above  contract,"  it  was  held  that  his  under- 
taking bound  him  to  a  direct  performance  of  the  contract,  and 
was  in  effect  that  he  or  his  principals  would  pay  for  the  goods  on 
delivery.3  Where  the  guaranty  is  absolute,  the  guarantor  is  not 
entitled  to  demand  or  notice;  but  his  liability  to  suit  arises  and 
is  fixed  at  the  same  moment  that  an  action  accrues  against  the 
principal  debtor,  or,  if  a  later  period  is  in  terms  fixed  upon,  upon 
the  arrival  of  the  time  named  therein,4  and  the  guarantor  may  be 
sued  thereon  without  any  previous  suit  against  the  principal 
debtor.5     Contingent  guaranties  are  those  in  which  the  guarantor 

1  Koch  v.  Melhorn,  25  Penn.  St.  89;  Cochran  v.  Dawson,  1  Miles  (Penn.) 
276. 

'  Roberts  v.  Riddle,  79  Penn.  St.  468;  Reigart  v.  White,  52  id.  43S;  Anderson 
v.  Washabaugh,  43  id.  115.     See  Williams  v.  Granger,  4  Day  (Conn.)  444. 

Where  a  person  contracts  to  indemnify  a  person  and  save  him  harmless  from 
certain  claims,  the  statute  does  not  begin  to  run  uniil  the  person  to  whom  the 
indemnity  is  given  has  paid  the  debt.  Hall  v.  Thayer,  12  Met.  (Mass  )  130. 
And  such  also  is  the  rule  where  money  is  paid  for  another  at  his  request. 
Perkins  v.  Littlefield,  5  Allen  (Mass.)  370. 

3  King  v.  Studebaker,  15  Ind.  45;  Cross  v.  Ballard,  46  Vt.  415;  Campbell  v. 
Baker  46  Penn.  St.  243;  Kramph  v.  Hatz,  52  id.  525.  A  writing  in  the  words 
"  I  will  guarantee  the  payment  to  you  of  $625  in  treasury  warrants  to-be  paid 
on  or  before  Ihe  20th  August  on  and  for  account  of  J.  W."  was  held  an  original 
an!  absolute  promise.      Matthews  v.  Chrisman,  20  Miss.  595. 

*  Smith  -,'.  Ide,  3  Vt.  301 ;  Dickerson  v.  Derrickson.  39  111.  574,  Bowman  r.  Curd, 
2  Bush  (Ky.)  5^5;  Young  v.  Brown,  3  Sneed  (Tenn.)  89;  Lane  v.  Levillian,  4  Ark. 
7'j;  Ege  v.  Barnitz,  8  Penn.  St.  304;  Breed  v.  Hillhouse,  7  Conn.  523;  Douglass 
I  lowland,  21  Wend.  (N.  Y.)  35;  Noyes  v.  Nichols,  28  Vt.  160;  Sibley  v.  Stuhl, 
[5  \\  1.  I..  332;  I',  ink  v.  Hammond,  1  Rich.  (S.  C.)  281;  Beebe  v.  Dudley,  26  N. 
H.  249;  McDougal  v.  Calef,  34  N.  II.  534;  Simons  t.  Seele,  36  id.  73;  Cox  v. 
Brown.  '.  [ones  (N.  ' '.)  P.  100. 

'  I',  ink  of  New  York  v,  Livingston,  2  Johns.  (N.  Y.)  Cas.  409;  Morris  v.  Wads- 
worth,  17  Wend.  (M.  Y.)  103;   Huntress  v.  Patton,  20  Me.  28;   Koch  v.  Melhorn, 


§   146.]  MISCELLANEOUS   CAUSES   OF   ACTION.  365 

does  not  assume  an  absolute  liability,  but  binds  himself  to  per- 
form in  case  the  debtor  fails  to  do  so.  Thus,  where  a  person 
guarantees  that  a  note  "  is  collectible,"  he  does  not  bind  himself 
absolutely  to  pay  the  note  but  only  to  do  so  in  the  event  that  the 
maker  proves  insolvent.1  In  other  words,  a  contingent  guaranty 
is  one  which  only  becomes  absolute  when  the  creditor,  by  due 
and  unsuccessful  diligence  to  obtain  satisfaction  from  the  princi- 
pal, fails  to  do  so,  or  by  circumstances  that  excuse  diligence.2 
A  guaranty  "against  loss  "  on  a  note,  bond,  or  mortgage,  is  a  con- 
tingent one,  putting  the  creditor  on  his  diligence ; 3  so  also  a  guar- 
anty that  a  note  "  is  good,"  4  or  to  pay  in  case  the  holder  "  fails 
to  recover  the  money  on  said  note,"  5  are  all  contingent  guaran- 
ties; and,  indeed,  so  are  all  that  impose  upon  the  person  to  whom 
they  are  given  the  duty  of  first  exhausting  his  remedies  against 
the  principal.6  The  distinction,  then,  to  be  observed  is,  that  in 
the  case  of  a  contingent  guaranty  a  right  of  action  does  not 
accrue  against  the  guarantor  immediately  upon  the  failure  of  the 
principal  to  perform,  but  imposes  upon  the  creditor  the  duty  of 
exhausting  his  remedy  against  the  principal  before  he  resorts  to 
the  guarantor,  or  must  show  satisfactorily  that  the  affairs  of  the 
principal  were  in  such  a  condition  that  any  pursuit  of  him  would 
have  proved  fruitless.7  Consequently,  in  the  case  of  a  contin- 
gency guaranty,  as  the  statute  begins  to  run  when  the  right  of 
action  against  the  guarantor  becomes  complete,  it  follows  that  it 
only  attaches  in  his  favor  when  the  necessary  steps  to  fix  his  lia- 
bility have  been  taken  and  are  fully  completed. 

25  Penn.  St.  89;  Roberts  v.  Riddle.  79  id.  468;  Cochran  v.  Dawson,  1  Miles 
(Penn.)  276;  Smeidel  v.  Lewellyn,  3  Phila.  (Penn.)  70;  Douglass  v.  Reynolds, 
7  Pet.  (U.  S.)  113;  Brown  v.  Curtis,  2  N.  Y.  225. 

1  M'Doal  v.  Yomans,  8  Watts  (Penn.)  361. 

s  Gilbert  v.  Henck,  30  Penn.  St.  205;  Woods  v.  Sherman,  71  id.  100;  Hoffman 
v.  Bechtel,  52  id.  190. 

3  Griffith  v.  Robertson,  15  Hun  (N.  Y.)  344;   McMurray  v.  Noyes,  72  N.  Y.  523. 

4  Cooke  v.  Nathan,  16  Barb.  (N.  Y.)  342. 

5  Jones  v.  Ashford,  79  N.  C.  172. 

*  Cumpston  v.  McNair,  1  Wend.  (N.  YO457;  Pollock  v.  Hoag,  4  E.  D.  Sm. 
(N.  Y.  C.  P.)  4T3;  Vanderkemp  v.  Shelton,  n  Paige  (N.  Y.)  28;  Newell  v. 
Fowler,  23  Barb.  (N.  Y.)  628. 

1  Dyer  v.  Gibson,  16  Wis.  557;  Parker  v.  Culvertson,  Wall.  Jr.  (U.  S.)  149; 
Benton  v.  Fletcher,  31  Vt.  418;  Wheelers.  Lewis,  11  id.  265;  D;ina  v.  Conant, 
30  id.  24.6;  Sandford  v.  Allen,  1  Cush.  (Mass.)  473;  McClurg  v.  Fryer,  15  Penn. 
St.  293;  Cody  v.  Sheldon,  38  Barb.  (N.  Y.)  103;  Stark  v.  Fuller,  42  Penn.  St.  320; 
Thomas  v.  Woods,  4  Cow.  (N.  Y.)  173. 


366  STATUTES   OF   LIMITATION.  [CHAP.   XIII. 

SEC.  147.  Money  paid  for  Another.  —  Where  money  is  paid 
for  another  under  such  circumstances  that  the  law  will  imply  a 
promise  to  repay  it,  and  no  time  is  fixed  for  its  repayment,  the 
right  of  action  accrues  at  once;  but  if  the  payment  is  made  in 
liquidation  of  a  note  or  contract  not  matured,  the  right  of  action 
does  not  accrue  until  the  debt  has  matured,  and  if  anything 
remain  to  be  done  to  effectuate  the  payment,  a  right  of  action 
does  not  accrue  until  that  is  done.  Thus,  where  an  administra- 
trix brought  an  action  to  recover  money  paid  in  liquidation,  one 
of  two  notes  secured  by  mortgage,  it  was  held  that  the  statute 
began  to  run  from  the  date  of  the  discharge  of  the  mortgage, 
and  not  from  the  time  when  the  payment  was  made.1 

SEC.    14S.   Action    under    Enabling    Acts Where    a    statute 

gives  a  party  the  right  to  sue  on  an  existing  claim  where  such 
right  did  not  exist  before,  and  is  silent  as  to  the  time  when  the 
statute  shall  begin  to  run  thereon,  it  attaches  and  begins  to  run 
from  the  day  the  act  first  took  effect,  unless  suit  might  have  been 
brought  in  the  name  of  another  —  as  the  assignee  of  a  case  —  in 
which  case  it  begins  to  run  from  the  time  the  claim  first  accrued.2 

SEC.  149.  Actions  against  Stockholders  of  Corporations.  — 
Where,  by  statute,  the  stockholders  of  a  corporation  are  made 
liable  for  the  debts  of  the  corporation,  their  liability  commences 
when  the  liability  of  the  corporation  commences,  and  ends  at  the 
same  time  that  liability  on  the  part  of  the  corporation  ends,  (a) 

1  Lunce  v.  McLoon,  58  Me.  321. 

2  Cross's  Case.  4  Ct.  of  CI.  (U.  S.)  271. 

(a)  See   Seattle   Nat.   Bank  z:  Pratt,  Liggett,    135    U.    S.    533;     Aldrich    v. 

103  Fed.  Rep.  62;  San  Rosa  Nat.  Bank  Campbell,     97     Fed.     Rep.     663,     669; 

v.    Barnett,    125    Cal.    407;   Ryland    1.  Devveese    v.    Smith,   106    id.    438,  441. 

Commercial  &  Sav.  Bank,  127  Cal.  525;  As  the  national  bank  act  fixes  no  limit 

First  Nat.    Bank  v.    King,   60  Kansas,  of  time  for   collecting   such  an    assess- 

733;  Chase    v.    Horton    Bank,    q  Kan.  ment,  Ihe  limitation  is  that  of  the  stat- 

App.  186,  40  Central  L.  J.  210:  Thomp-  ules  of   the   State  where    the   action   is 

son    v.    Reno   Savings    Bank   (19    Nev.  brought.      Aldrich  v.  Skinner,  98   Fed. 

103),    3   Am.  St.  Rep.    797,   827,  872,  n.  Rep.  375. 

The    liability    of    a    shareholder    in    a         Where,  as  in  Massachusetts,  it  is  held 

national   bank  is  often   held  to  be  con-  that    a    foreign    statute,    like    that    of 

tractual;  in   which   case   the  statute  of  Kansas,  making  stockholders  in  one  of 

limitations  docs   not  commence  to   run  its    own   corporations   liable  by  assess- 

ist  the  enforcement  of  his  entire  ment  to  judgment  creditors  of  the  cor- 

Hability  or  of  any  particular  portion  of  poration,    such    liability  is    transitory, 

it  until  the  comptroller  of  the  currency  and    may    be    enforced    in    any    State 

li  is   called    the   entire   liability   or   the  where    personal    service   can    be   made 

particular  part  of  it  in  issue.     Glenn  v.  upon  the  stockholder;  if  the  statute  of 


§  I49-] 


MISCELLANEOUS   CAUSES   OF   ACTION. 


367 


But,  if  the  statute  provides  that  no  action  shall  be  commenced 
against  them  until  after  judgment  and  execution  unsatisfied 
against  the  corporation,  their  liability  does  not  begin,  nor  the 
statute  begin  to  run  in  their  favor,  until  the  return  of  the  exe- 
cution aforesaid.  But  if,  notwithstanding  such  provision,  the 
statute  also  provides  that  they  may  be  jointly  sued  with  the  cor- 
poration, the  statute  begins  to  run  in  their  favor  at  the  same 
time  that  it  begins  to  run  in  favor  of  the  corporation.1  (^)     The 

1  Conklin  v.  Furman,  8  Abb.  (N.  Y.)  Pr.  n.  s.  161;  Bakers.  Atlas  Bank,  9 
Met.  (Mass.)  182.  No  privity  exists  between  the  stockholders  and  a  creditor  of 
the  corporation.  The  stockholder  can  only  be  reached  by  the  creditor  through 
the  corporation;  and  if  the  debt  due  from  the  stockholder  is  barred  as  against 
the  corporation,  the  creditor  cannot  enforce  its  payment  in  equity.  Bassett  v. 
Hotel  Co.,  47  Vt.  313;  Terry  v.  Anderson,  95  U.  S.  635;  Manufacturing  Co.  v. 
Bank,  6  Rich.  Eq.  (S.  C.)  234;  Cherry  v.  Lamarr,  58  Ga.  541.  And  the  running 
of  the  statute  between  the  corporation  and  the  stockholder  is  not  suspended  by 
the  recovery  of  a  judgment  against  the  corporation,  or  by  any  note  or  written 
obligation  of  the  corporation  given  by  the  officers  after  it  has  gone  into  liquida- 
tion.    Stilphen  v.  Ware,  45  Cal.  no.     After  a  corporation  has  gone  into  volun- 


limitations  of  the  judgment  State,  like 
that  of  Kansas,  provides  that  if  a  per 
son  is  out  of  the  State  when  a  cause  of 
action  against  him  accrues,  the  period 
limited  for  the  commencement  of  the 
action  does  not  begin  to  run  until  he 
comes  into  the  State,  which  provision 
is  in  Kansas  held  to  apply  to  non-resi- 
dents, and  there  is  no  statutory  re- 
quirement that  the  above  right  of  action 
must  be  enforced  within  a  specified 
period  of  time,  such  right  of  action  is 
not  barred  by  the  foreign  statute  of 
limitations.  Broadway  Nat.  Bank  v. 
Baker,  176  Mass.  294.  See  Stebbins 
v.  Scott,  172  Mass.  356;  Whitman  v. 
OxforJ  Nat.  Bank,  176  U.  S.  559;  Han- 
cock Nat.  Bank  v.  Farnum,  id.  640; 
Marshall  v.  Shetman,  148  N.  Y.  9. 

Where  an  insolvent  corporation  is  in 
the  hands  of  a  receiver,  limitation  be- 
gins to  run  in  favor  of  a  stockholder  as 
to  unpaid  assessments  on  his  stock, 
from  the  time  when  the  court  orders 
the  assessment  to  be  made.  Glenn  v. 
Marbury,  145  U.  S.  499.  See  Hobbs  v. 
Nat.  Bank  of  Commerce,  96  Fed.  Rep. 
396;  Hunt  v.  Ward,  99  Cal.  6)2;  Part- 
ridge v.  Butler,  113  Cal.  326;  28  Am.  L. 
Rev.  906;  29  id.  109,  435,  777;  6  Ry.  & 
Corp.  L.  J.  83. 

As  to  a  stockholder's  claim  to  a 
certificate  of  stock  even  if  the  corpora- 
tion can  ever  rely  on  lapse  of   time   in 


such  a  case,  the  statute  certainly  will 
not  begin  to  run  in  its  favor  until  the 
stockholder  is  notified  by  some  unequi- 
vocal act  that  his  right  to  the  stock  is 
disputed.  Com.  v.  Springfield,  M.  & 
H.  Turnpike  Co.,  10  Bush  (Ky.)  254; 
Owingsville,  etc..  Road  Co.  v.  Bon- 
durant  (Ky.),  54  S.  W.  718.  The  right 
of  a  member  of  a  voluntary  corpora- 
tion, such  as  a  building  and  loan  asso- 
ciation, on  his  withdrawal  therefrom, 
to  require  payment  of  his  demand, 
does  not  accrue  until  a  sufficient  fund 
is  accumulated  by  the  association  to 
meet  such  demand,  and  until  then  the 
statute  of  limitations  does  not  begin  to 
run  against  it.  Andrews  v.  Roanoke 
Building  Ass'n,  98  Va.  445. 

(a)  In  Jagger  Iron  Co.  v.  Walker,  76 
N.  Y.  521  (followed  in  City  Nat.  Bank 
v.  Phelps,  86  N.  Y.  484,  491),  it  was 
held  that,  under  a  statute  by  which  suit 
cannot  be  brought  against  the  stock- 
holders of  manufacturing  corporations 
after  one  year  from  the  time  when  the 
debt  became  due,  such  debt  is  due  at 
the  maturity  of  the  first  of  several 
notes,  although  there  had  been  renew- 
als. See  25  Am.  L.  Rev.  307,  criticis- 
ing and  reviewing  this  decision.  See 
Brunswick  Terminal  Co.  v.  Baltimore 
Nal.  Bank,  99  Fed.  Rep.  635;  Seattle 
Nat.  Bank  v.  Pratt,  103  id.  62;  Sedg- 
wick z>.  Sanborn  (Kansas),  65  Pac.  661. 


368  STATUTES   OF   LIMITATION.  [CHAP.   XIII. 

statute  begins  to  run  upon  subscriptions  to  stock  of  a  corporation 

tary  liquidation,  it  is  to  all  intents  and  purposes  in  the  same  condition  as  a 
dissolved  partnership,  and  cannot  create  any  new  debt  against  a  corporation. 
White  v.  Knox,  m  U.  S.  784;  Parker  v.  Macomber,  18  Pick.  (Mass.)  505.  It 
cannot  renew  or  extend  any  stock  liability  bv  any  contract  made  with  the  cred- 
itor. Where  a  bill  in  equity  is  brought  by  a  creditor  against  a  corporation  in 
behalf  of  all  the  creditors,  no  creditor  is  entitled  to  recover  who  does  not  come 
forward  to  present  his  claim.  Richmond  v.  Irons,  121  U.  S.  27.  See  Rector, 
etc.  v.  Vanderbilt,  98  N.  Y.  170,  as  to  barring  taxes  and  water-rates  imposed 
each  year. 

In  Brinckerhoff  v.  Bostwick,  99  N.  Y.  185,  reversing  39  Hun,  352  it  was  held 
that  the  provision  of  the  Code,  limiting  to  three  years  the  time  for  bringing  an 
action  against  a  director  or  stockholder  of  a  moneyed  corporation  "  to  recover  a 
penalty  or  forfeiture  imposed,  or  to  enforce  a  liability  created  by  law,"  does 
not  apply  to  an  equitable  action  against  the  director  of  such  a  corporation  to 
require  an  accounting  and  to  recover  damages  for  their  neglect  and  inattention 
to  the  duties  of  their  trusts  whereby  they  suffered  corporate  funds  to  be  lost  and 
wasted.  Such  an  action  is  simply  the  enforcement  of  a  common-law  liability, 
while  the  words  of  the  provision,  "  a  liability  created  by  law,"  have  reference 
only  to  a  liability  created  by  statute.  The  limitation  applicable  to  such  an 
aciion  is  ten  years.  Where  a  national  bank  had  become  insolvent,  and  one  of 
its  directors  had  been  appointed  receiver,  an  action  was  brought  against  him 
and  ihe  other  directors  for  neglect  of  their  duties,  by  one  of  the  stockholders  on 
behalf  of  himself  and  the  other  stockholders.  Held,  that  as  to  other  stockhold- 
ers who  became  parties  to  the  action  upon  their  petition,  the  statute  of  limita- 
tions began  to  run  from  the  time  of  the  commencement  of  the  action,  not  from 
the  time  of  filing  their  petitions;  that  for  the  purposes  of  the  statute  of  limita- 
tions the  action  must  be  treated  as  if  all  the  stockholders  were  original  plain- 
tiffs. The  original  plaintiff  could,  at  any  time  before  other  stockholders  were 
made  parties,  and  before  judgment,  have  settled  his  individual  claim,  and  exe- 
cuted a  release  thereof  and  discontinued  the  action,  but  upon  prosecution  to 
judgment  it  was  for  the  benefit  of  all  the  stockholders  and  he  ceases  to  have 
control  over  it.  If  stockholders  do  not  come  in,  the  suit  having  been  com- 
menced for  their  benefit,  their  rights  are  not  barred  by  any  lapse  of  time  after 
the  commencement.  Cunningham  v.  Pell,  6  Paige  (N.  Y.),  655,  was  dis- 
tinguished. 

The  stockholders  of  a  corporation  are  not  personally  liable  for  the  debts  of  a 
corporation  against  which  the  statute  had  run  before  its  charter  expired.  Van 
Hook  v.  Whitlock,  3  Paige  (N.  Y.)  409. 

In  Hollingshead  v.  Woodward,  107  N.  Y.  96,  under  the  provision  of  the  gen- 
eral manufacturing  act,  declaring,  "  that  no  suit  shall  be  brought  against  any 
stockholder  "  of  a  company  organized  under  said  act,"  who  shall  cease  to  be  a 
stockholder,  *  *  *  unless  the  same  shall  be  commenced  within  two  years 
from  the  time  he  shall  have  ceased  to  be  a  stockholder,"  whenever  a  stock- 
holder shall  be  divested  of  his  interest  in  or  control  over  the  affairs  of  the  corpo- 
ra ion,  by  actual  dissolution  thereof  by  formal  judgment,  or  by  a  surrender  of  its 
corporate  rights,  privileges,  and  franchises,  the  time  begins  to  run,  and  at  the 
end  of  two  years  therefrom  the  stockholder  is  no  longer  liable  for  any  debt  of  the 
corporation. 


§   150.]  MISCELLANEOUS    CAUSES   OF   ACTION.  369 

from   the  time  when   each   call  is  made  for  an  instalment  of  the 
amount  subscribed  for.1 

SEC.  150.  Stock  Subscriptions.  —  Where  no  time  is  fixed  for 
payment  by  the  terms  of  a  subscription  for  the  stock  of  a  cor- 
poration, but  the  same  is  left  subject  to  call,  the  statute  begins 
to  run  from  the  date  of  each  call  for  an  instalment  thereof  by  the 
proper  authority. **  (a)  In  a  Pennsylvania  case,3  by  the  terms  of 
the  subscription  the  money  therefor  was  payable  "  in  such  man- 
ner, at  such  times,  and  in  such  proportions  as  shall  be  determined 
by  the  president  and  managers,  and  it  was  held  that  the  statute 
did  not  begin  to  run  thereon  until  after  such  determination  and 
a  demand  made  in  pursuance  thereof.  But  if  the  statute  fixes 
the  time  within  which  payment  shall  be  made,  or  if  the  time  of 
payment  is  fixed  in  the  subscription  contract,  the  statute  begins 
to  run  from  the  time  therein  designated  for  payment,  as  at  that 
time,  and  not  before,  an  action  will  lie  for  its  recovery.  If  no  time 
is  designated  either  by  statute  or  in  the  subscription  itself,  it 
would  probably  be  treated  as  due  upon  demand,  and  the  statute 
would  begin  to  run  from  the  date  of  subscription,  upon  the 
ground  that  where  no  time  for  payment  is  designated,  it  is  treated 
as  a  debt  due  on  demand,  and  the  statute  attaches  from  its  date.4 
Where  such  notes  are  made  payable  upon  a  certain  number  of 
days'  notice,  a  right  of  action  does  not  accrue  until  the  expira- 
tion of  such  notice  duly  given.5  If,  by  the  charter  or  law  under 
which  the  corporation  is  founded,  the  subscriptions  do  not  become 
due  until  called  for  by  resolution  of  the  board  of  directors,  the 
statute  does  not  begin  to  run  until  such  call  has  been  regularly 
made.6  If  the  subscription  fixes  the  time  of  payment,  no  demand 
is  necessary,   and  the   subscription   becomes   payable   upon   the 

1  Western  R.  Co.  v.  Avery,  64  N.  C.  491;  Kincaid  v.  Dwindle,  59  N.  Y.  548. 
dislinguished  and  limited. 

8  Western  R.  R.  Co.  v.  Avery,  64  N.  C.  491;  Pittsburg  &  Connellsville  R.  Co. 
v.  Plummer,  37  Penn.  St.  413. 

8  Sinkler  v.  Turnpike  Co.,  3  P.  &  W.  (Penn.)  149. 

4  Grubb  v.  Vicksburg  &  B.  R.  Co.,  50  Ala.  398;  Phoenix  Warehousing  Co.  v. 
Badger,  67  N.  Y.  294. 

'  Cole  v.  Joliet  Opera  House  Co.,  79  111.  96. 

6  Bouton  v.  Dry  Dock  Stage  Co.,  4  E.  D.  Sm.  (N.  Y.)  420;  Ross  v.  Lafayette, 
etc.,  R.  R.   Co.,  8  Ind.  297.     See  Williams  v.  Taylor,  120  N.  Y.  244;   Lake  On- 

(a)  See  Johnson  v.  Bank  of  Lake,  125  Cal.  6;  Crofoot  v.  Thatcher,  19  Utah,  212. 
[stats,  of  lim.  —  24] 


370  STATUTES   OF   LIMITATION.  [CHAP.   XIII. 

arrival  of  the  time  named  therein;1  and  such  also  is  the  rule 
when  the  time  of  payment  has  been  fixed  by  a  by-law  of  the 
company.2  Thus,  where  by  the  terms  of  the  subscription  shares 
of  stock  were  to  be  paid  for  by  instalments  of  ten  per  cent  every 
sixty  days  after  the  work  was  put  in  contract,  it  was  held  the 
subscriber  was  not  entitled  to  notice  of  the  time  of  the  contract, 
and  that  bringing  a  suit  upon  the  subscription  was  a  sufficient 
demand.3  In  other  words,  in  such  cases  the  subscriber  is  bound 
to  inquire  for  himself  and  ascertain  whether  his  subscription 
becomes  due  at  the  time  specified  or  not.  Generally,  unless 
notice  of  an  assessment  or  call  is  required  by  the  charter  or  sub- 
scription, it  is  not  an  indispensable  requisite  to  a  right  to  bring 
an  action ;  and,  where  it  is  not,  the  right  of  action  doubtless 
dates  from  the  date  of  the  call.4 

Sec.  151.  Money  payable  by  Instalments.  —  We  have  already 
seen  5  that  where  money  is  payable  by  instalments,  the  statute 
begins  to  run  upon  each  instalment  from  the  time  when  it 
becomes  due.6     But  we  have  also  seen  that  this  rule  does  not 

tario,  etc.,  R.  Co.  v.  Mason,  16  N.  Y.  451;  Howland  v.  Edmonds,  24  id.  307; 
Tuckerman  v.  Brown,  33  id.  297,  distinguished. 

1   New  Albany  &  J.   R.  Co.  v.  Pickens,  5  Ind.  247. 

3  Schenectady,  etc.,  Plank  Road  Co.  v.  Thatcher,  11  N.  Y.  102;  Winter  v. 
Muscogee  R.  Co.,  11  Ga.  438. 

3  Breedlove  v.  Martinsville,  elc,  R.  Co.,  12  Ind.  114. 

4  Eppes  v.  Mississippi,  etc.,  R.  Co.,  35  Ala.  33.  In  Glenn  v.  Leggett,  135  U. 
S.  533,  it  was  held  that  a  stockholder  is  bound  by  a  decree  against  the  corpora- 
tion, such  as  making  an  assessment  in  the  enforcement  of  a  corporate  duty, 
although  as  an  individual  he  was  not  a  party  to  the  action,  the  corporation 
being  treated  as  his  agent;  and  this  is  so  although  the  corporation  has  ceased 
the  prosecution  of  the  objects  for  which  it  was  organized.  It  being  held,  that 
for  the  collection  of  the  debts,  the  enforcement  of  liabilities,  and  the  payment 
of  its  creditors,  its  corporate  powers  still  remain  unimpaired.  Upon  the  insolv- 
ency of  a  corporation,  the  obligation  of  the  stockholder  to  pay  enough  of  the 
amount  unpaid  on  his  stock  to  pay  its  debts  does  not  become  complete  until  a 
call  or  demand  for  payment,  and  the  statute  does  not  begin  to  run  until  such 
call  or  demand  is  made;  and  he  cannot  set  up  the  statute  as  a  bar  to  an  action 
to  collect  his  subscription  for  the  payment  of  creditors  because  the  company  did 
not  discharge  its  corporate  duty  in  respect  to  its  creditors  earlier. 

4   Supra,  p.  360  et  seq. 

*  Hush  v.  Stowell,  71  Penn.  St.  208;  Baltimore  Turnpike  Co.  v.  Barnes,  6  H. 
&  J.  (Md.)  57;  Burnham  v.  Brown,  23  Me.  400.  In  Robertson  v.  Pickerell,  77 
N.  C.  202,  where  the  plaintiff  made  a  contract  with  the  defendant  to  do  certain 
work,  which  was  to  te  measured  and  paid  for  monthly,  it  was  held  that  the 
statute  began  to  run  at  the  end  of  each  month. 


§  152.]  MISCELLANEOUS   CAUSES   OF   ACTION.  37T 

apply  to  interest  payable  annually ;  but  that  in  such  a  case, 
although  an  action  lies  for  the  interest  as  it  matures,  yet  the  stat- 
ute does  not  begin  to  run  thereon  until  some  part  of  the  princi- 
pal becomes  due.1  In  Pennsylvania3  it  was  held  that  where 
there  was  a  parol  guaranty  of  the  sufficiency  of  a  mortgage  given 
to  secure  a  bond  payable  by  instalments,  the  statute  does  not 
begin  to  run  until  six  years  after  the  last  instalment  becomes 
due.3  So  where  subscriptions  to  the  stock  of  a  turnpike  company 
by  a  statute  were  made  payable  at  such  times  and  in  such 
proportions  "as  shall  be  determined  by  the  president  and  mana- 
gers," it  was  held  that  the  statute  did  not  begin  to  run  on  any 
part  thereof  until  after  such  determination,  and  a  demand  made 
in  pursuance  thereof.4 

Sec.  152.  Over-payments.  Money  paid  by  Mistake.  —  Where 
money  is  paid  by  one  to  another  by  mistake,  the  statute  begins 
to  run  from  the  time  of  the  payment  and  not  from  the  time  the 
mistake  was  discovered.5  Thus,  where  under  a  mistake  as  to  their 
liability  the  plaintiffs  paid  upon  the  return  of  a  bill  of  exchange 
drawn  in  Kentucky  and  payable  in  New  Orleans,  which  was  pro- 
tested, ten  per  cent  as  damages,  where  under  the  laws  of  Ken- 
tucky no  damages  were  collectible,  it  was  held  that  the  statute 
began  to  run,  upon  the  right  to  recover  it  back,  from  the  time 
the  money  was  paid,  and  not  from  the  time  when  they  ascer- 
tained what  their  rights  were  in  the  premises.6     But  where  the 

1  Grafton  Bank  v.  Doe,  19  Vt.  463;  Ferry  v.  Ferry,  2  Cush.  (Mass.)  92;  Hen- 
derson v.  Hamilton,  1  Hall  (N.  Y.)  314. 

*  Overton  v.  Tracey,  14  S.  &  R.  (Penn.)  311. 

3  See  also  to  the  same  effect  Jones  v.  Trimble,  3  Rawle  (Penn.)  381;  Poe  v. 
Foster,  4  W.  &  S.  (Penn.)  351.  In  Gonsoulin  v.  Adams,  28  La.  Ann.  59S,  where 
the  purchase-money  for  lands  sold  at  sheriff's  sale  was  payable  by  instalments, 
it  was  held  that  the  statute  began  to  run  in  favor  of  the  purchaser  from  the  time 
the  first  instalment  became  de,  and  that  the  right  of  the  vendor  to  bring  an 
action  to  set  aside  the  sale  became  complete  upon  the  first  default,  and  pre- 
sumption ran  against  it  from  that  time,  and  not  from  the  date  of  the  last  instal- 
ment. 

4  Sinkler  v.  Turnpike  Co.,  3  P.  &  W.  (Penn.)  149.  In  order  to  prevent  the 
operation  of  the  stat  ute,  because  of  a  contingency,  the  contingency  must  be  one 
named  in  the  contract  itself;  and  the  fact  that  a  demand  depends  upon  the 
contingency  of  the  rectification  of  a  mistake  in  the  contract  by  a  court  of  equity, 
does  not  prevent  the  operation  of  the  statute.     Jones  v.  Lightfoot,  10  Ala.  17. 

s  Clark  v.  Dutcher,  9  Cow.  (N.  Y.)  674. 

6  Bank  of  United  States  v.  Daniel,  12  Pet.  (U.  S.)  32;  Shelbuine  v.  Robinson, 
8  111.  597- 


372  STATUTES   OF    LIMITATION.  [CHAP.   XIII. 

parties  are  in  the  habit  of  striking  balances  at  stated  periods,  it 
is  held  that  the  statute  begins  to  run  from  the  striking  of  such 
balance.  In  an  action  by  a  bank  to  recover  of  a  depositor  an 
amount  of  money  overpaid  to  him  through  mistake,  it  was  held 
that  the  statute  began  to  run  from  the  date  of  the  monthly  bal- 
ance struck  in  the  depositor's  bankbook,  and  not  from  the  time 
the  money  was  paid.1  And  where  an  administrator  paid  a  debt 
under  the  erroneous  belief  that  the  estate  was  solvent,  it  was 
held  that  the  statute  did  not  begin  to  run  against  his  claim  to 
recover  it  back  from  the  time  the  money  was  paid,  but  from  the 
time  of  the  insolvency  of  the  estate  is  ascertained  by  a  decree  of 
insolvency  and  order  of  distribution.2  But  where  an  executor 
voluntarily  paid  over  money  to  a  legatee,  and  ten  years  after- 
wards claimed  that  he  had  paid  too  much  and  brought  an  action 
to  recover  it  back,  it  was  held  that  the  action  was  barred.3  And 
also,  where  an  administrator  found  a  mortgage-deed  among  the 
testator's  papers,  and  assigned  it,  and  it  turned  out  to  be  a 
forgery,  it  was  held  that  the  statute  began  to  run  from  the  date 
of  the  assignment.4 

SEC.  153.  Failure  of  Consideration.  —  Where  money  has  been 
paid  upon  a  consideration  that  ultimately  fails,  the  statute  does 
not  begin  to  run  until  such  event;  as,  until  that  time,  no  right 
of  action  accrues  to  recover  back  the  money  paid.5  Thus,  if 
money  is  paid  upon  a  contract  for  the  sale  of  land,  which  the 
vendor  refuses  to  or  is  unable  to  convey  the  statute  does  not 
begin  to  run  against  the  vendor  for  the  money  paid  until  the 
vendor  has  refused  or  become  unable  to  convey  the  land,  at  which 

1  Union  Bank  v.  Knapp,  3  Pick.  CMass.)  96.  In  Johnson  v.  Rutherford,  10 
Penn.  St.  455,  where  money  was  overpaid  on  a  contract  for  work,  it  was  held 
that  the  statute  did  not  begin  to  run  until  the  payment  of  the  balance  on  final 
settlement. 

2  Walker  v.  Bradley,  3  Pick.  (Mass.)  261. 

3  Shelburne  v.  Robinson,  8  111.  597.  See  also  Gamble  v.  Hicks,  27  Miss.  781; 
Johnson  v.  Rutherford,  ro  Penn.  St.  455. 

*  Bree  v.  Holbech,  2  Doug.  654. 

s  Ri  :hards  v.  Allen,  17  Me.  296.  Where  a  debtor  conveys  lands  to  his  cred- 
itor as  collateral  security  for  a  debt,  under  an  agreement  that  it  shall  be  recon- 
veyed  on  payment  of  the  debt,  the  statute  does  not  begin  to  run  upon  the 
creditor's  agreement  to  reconvey  until  an  offsr  of  settlement  has  been  made. 
Hall  v.  Fenton,  105  Mass.  516.  See  Eames  v.  Savage,  14  id.  425,  as  to  the  time 
whf-n  the  statute  begins  to  run  for  the  consideration  paid  upon  a  parol  contract 
for  the  sale  of  lands.      Hilton  v.  Duncan,  1  Coldw.  (Tenn.)  313. 


§  I  53- J  MISCELLANEOUS   CAUSES   OF   ACTION.  $J$ 

time  the  consideration  fails,  and  a  right  of  action  to  recover  it 
back  arises; l  and  it  has  been  held  in  some  of  the  cases  that  the 
same  rule  obtains  where  personal  property  to  which  the  vendor 
had  no  title  is  sold.2  But  in  Kentucky  it  has  been  held  that  an 
implied  warranty  if  title  is  broken  at  once  if  the  vendor  has  no 
title,  and  that  the  statute  begins  to  run  from  the  date  of  the  con- 
tract; 3  and  such  seems  to  be  the  doctrine  generally  held,4 
especially  relative  to  breaches  of  warranties  as  to  the  quality  cf 
property  sold.5  Where,  however,  lands  are  purchased  and  con- 
veyed by  a  warranty -deed  that  is  invalid  because  of  the  guaran- 
tor's failure  to  comply  with  certain  statutory  requirements,  the 
grantee  instantly  has  a  right  of  action  to  recover  it  back,  and  the 
statute  begins  to  run  from  that  time.  Thus,  where  a  person 
purchased  land  of  a  guardian,  and  the  guardian  having  failed  to 
comply  with  certain  statutory  provisions  the  deed  was  a  nullity, 
in  an  action  by  the  grantee  to  recover  back  the  consideration- 
money  it  was  held  that  the  statute  began  to  run  from  the  day 
the  money  was  paid,  and  not  from  the  time  that  the  defect  in 
the  conveyance  was  ascertained ; 6  and  the  same  doctrine  was 
held  in  Alabama  in  a  case  where  a  person  went  into  possession 
under  a  void  deed.7  Where  under  a  parol  or  even  a  written  con- 
tract for  the  sale  of  lands,  no  time  is  fixed  for  a  conveyance,  the 
statute  does  not  begin  to  run  against  the  purchaser,  as  to  the 
money  paid,  until   he   has   demanded  a  deed  or  the  other  party 

1  Taylor  v.  Rowland,  26  Tex.  293;  Harris  v.  Harris,  70  Perm.  St.  170;  Evans 
v.  Lee,  23  id.  88;  Bowles  v.  Woodson.  6  Gratt.  (Ya.)  78;  Stewart  v.  Keith,  12 
Penn.  St    23S.     See  Baxter  v.  Gay,  14  Conn.  119. 

2  Caplinger  v.  Vaden,  5  Humph.  (Tenn.)  629;  Gross  v.  Kierski,  41  Cal.  in. 

3  Chancellor  v.  Wiggins,  4  B.  Mon.  (Ky.)  201. 

4  Richards  v.  Allen,  supra. 

5  Baucum  v.  Streater,  5  Jones  (N.  C.)  L.  70. 

6  Furlong  v.  Slone,  12  R.  I.  437.     See  Bishop  v.  Little,  3  Me.  405. 

1  Molton  v.  Henderson,  62  Ala.  426.  In  this  case  it  was  held  that  where  the 
legal  title  to  land  resides  in  trustees  or  the  survivors  of  them,  and  such  lands 
are  sold  under  void  proceedings  by  a  guardian  of  the  cestui  que  trust,  and  the 
purchaser  goes  into  possession,  the  statute  of  limitations  begins  to  run  from 
the  date  of  such  sale  and  possession  under  it,  and  is  not  suspended  by  the  death 
of  the  trustee  after  such  possession  accrued.  Miller  v.  Sullivan,  4  Dillon  (U. 
S.)  340.  See  also  Edge  v.  Edge,  62  Ga.  2S9,  where  an  administrator  and  another 
person  bought  land  of  the  estate,  and  the  administrator  settled  with  the  dis- 
tributees therefor;  in  an  action  by  him  against  his  co-purchaser  for  his  share 
of  the  purchase-money,  it  was  held  that  ihe  statute  began  to  run  from  the  date 
of  the  sa'e,  and  not  from  the  ratification  by  the  distributees. 


374  STATUTES   OF   LIMITATION.  [CHAP.  XIII. 

has  died,1  the  rule  being  that  the  statute  does  not  begin  to  run 
against  a  person  who  has  paid  money  under  a  voidable  contract 
until  some  act  has  been  done  by  the  other  party,  or  by  the  per- 
son paying  the  money,  evincing  an  intention  to  rescind  the 
contract.2 

Sec.  i  54.  Sheriff,  Action  against,  for  Breach  of  Duty.  —  The 
statute  does  not  begin  to  run  against  a  sheriff  for  moneys  col- 
lected on  an  execution  until  a  demand  has  been  made  upon  him 
therefor,  or  until  he  has  made  a  proper  return  of  the  execution 
as  required  by  law,3  or,  if  no  return  has  been  made,  until  the 
lapse  of  the  time  within  which,  by  law,  the  return  is  required  to 
be  made.  But  in  Georgia  it  has  been  held  that  the  statute 
begins  to  run  from  the  time  the  money  was  received.4  But  this 
doctrine  can  hardly  be  regarded  as  well  founded,  because  the 
sheriff  has  the  whole  period  fixed  by  law  within  which  to  make 
his  return,  and  until  that  time  has  elapsed  the  creditor  has 
no  means  of  knowing  whether  the  sheriff  intends  to  pay  over  to 
him  the  money  collected  or  not ,  nor,  until  the  return-day  has 
passed,  can  he  maintain  an  action  against  him  either  for  not  col- 
lecting, or  for  refusing  to  pay  over  the  money  when  collected. 
In  Louisiana  it  is  held  that  the  statute  does  not  begin  to  run  in 
such  cases  until  the  judgment  creditor  has  demanded  the  money.5 
For  money  collected  by  a  sheriff  on  foreclosure  proceedings,  the 
statute  does  not  begin  to  run  until  the  sale  is  perfected  by  deliv- 
ery of  the  deed.6     For  not  returning  an  execution  on  time,  the 

1   Eames  v.  Savage,  supra. 

5  Collins  v.  Thayer,  74  111.  138. 

3  Governor  v  Stonum,  ir  Ala.  679;  State  v.  Minor,  44  Mo.  373.  Where  an 
officer  receives  from  an  execution  debtor  a  note  in  satisfaction  thereof,  payable 
to  himself,  the  statute  does  not  begin  to  run  against  the  judgment  creditor's 
right  to  recover  of  him  the  proceeds  of  such  note,  until  the  creditor  has  made 
a  demand  upon  the  officer  therefor,  especially  where  the  note  remained  uncol- 
lected until  a  short  time  before  demand.  Childs  v.  Jordan,  106  Mass.  321,  and 
the  same  rule  prevails  as  to  money  collected  on  an  execution  by  an  officer. 
Weston  v.  Ames,  10  Met.  (Mass.)  244.  An  officer  who  sells  an  equity  of  redemp- 
tion upon  execution,  and  holds  the  surplus,  upon  a  second  attachment,  which 
has  since  failed,  is  not  liable  to  the  judgment  debtor  for  such  surplus  until  he 
has  received  notice  of  the  dissolution  of  the  second  attachment;  consequently 
the  statute  does  not  being  to  run  in  his  favor  until  such  notice  is  given.  King 
v.  Rice,  12  Cush.  (Mass.)  161. 

4  Thompson  v.  Central  Bank,  o  Ga.  413;  Edwards  v.  Ingrahan,  31  Miss.  272. 
$   Fuqua  v.  Young,  14  La.  An.  2if>. 

•  Van  Nest  v.  Lott,  \i  Abb.  Pr.  (N.  Y.)  130. 


§  1 54-]  MISCELLANEOUS   CAUSES   OF   ACTION.  375 

statute  begins  to  run  the  moment  the  time  for  returning  expires, 
without  demand  or  notice.1  The  cause  of  action  against  a  sheriff 
for  damages  occasioned  by  his  unauthorized  release  of  property- 
attached  on  mesne  process  does  not  arise  from  the  date  of  the 
release  but  from  the  date  ol  the  judgment,  and  the  statute  begins 
to  run  from  that  time.2  In  an  action  against  a  sheriff  for  an 
escape,  the  statute  begins  to  run  from  the  time  of  the  escape.3 
For  making  an  insufficient  return  on  mesne  process,  by  reason  of 
which  the  plaintiff  lost  the  benefit  of  the  attachment,  the  statute 
begins  to  run  from  the  time  the  writ  was  returned  to  the  proper 
officer,  and  not  from  the  time  when  the  damage  therefrom 
accrued ;  *  and  this  is  also  the  rule  where  he  attaches  insufficient 
property  on  the  original  writ,  when  he  was  directed  to,  and  might 
have  attached  sufficient.5  But  for  taking  insufficient  bail  it  is 
held  that  the  statute  does  not  begin  to  run  until  a  return  of  non 
est  inventus  has  been  made  on  the  execution.  The  distinction 
being  that  the  persons  becoming  bail  only  guarantee  that  the 
debtor  shall  be  forthcoming  to  respond  to  the  execution,  and  do 
not  become  liable  to  pay  the  debt  except  upon  failure  in  that 
respect,  consequently  no  right  of  action  exists  in  favor  of  the 
creditor  until  it  is  ascertained  that  the  debtor  is  not  forthcoming 
upon  the   execution ; 6  and   the  same  rule  prevails  in  actions  for 

1   Peck  v.  Hurlburt,  46  Barb.  (N.  Y.)  559. 

*  Lesem  v.  Neal,  53  Mo.  412. 

1  Rosborough  v.  Albright,  4  Rich.  (S.  C.)  39;  West  v.  Rice,  9  Met.  (Mass.)  564; 
French  v.  O'Neale,  2  H.  &  M.(Md.)4oi;   Cockram  v.  Welby,  2  Mod.  212. 

4  Miller  v.  Adams,  16  Mass.  456;  Csesar  v.  Bradford,  13  id.  169.  In  Bank  of 
Hartford  County  v.  Waterman,  26  Conn.  324,  it  was  held,  in  a  case  where  an 
officer  made  a  false  return,  that  the  statute  did  not  begin  to  run  until  the  plaintiff 
had  sustained  actual  damage  therefrom.  But  see  Ellsworth,  J.,  dissenting. 
In  Newell  v.  Whigham,  102  N.  Y.  20,  held  that  a  sheriff's  return  to  a  writ  of 
possession  is  not  conclusive  as  to  the  execution  of  the  writ;  and  that,  as  against 
a  mortgagee  of  a  leasehold  interest,  who  is  not  in  possession  of  the  demised 
premises,  to  set  the  six  months'  statute  of  limitations  running,  and  to  cut  off 
his  right  to  redeem,  the  execution  of  a  writ  of  possession,  issued  in  an  action 
of  ejectment  brought  by  the  landlord  because  of  non-payment  of  rent,  must  be 
an  open,  visible,  and  notorious  change  of  possession;  a  mere  nominal  and 
secret  execution  of  the  writ  is  not  sufficient.  See  Witbeck  v.  Van  Rensselaer, 
64  N.  Y.  27,  distinguished. 

6  Betts  v.  Norris,  21  Me.  314  (denied  in  a  Connecticut  case,  Bank  of  Hartford 
County  v.  Waterman,  26  Conn.  324);  Garlin  v.  Strickland,  27  Me.  443. 

'  West  v.  Rice,  9  Met.  (Mass.)  564;  Ceesar  y.  Bradford,  13  id.  169;  Mather  z; 
Green,  17  id.  60.  An  action  against  a  sheriff  for  taking  insufficient  bail  accrues 
from   the  time  of  the  return  of  non  est  inventus  on  the  execution  against  the 


376  STATUTES    OF    LIMITATION.  [CHAP.   XIII. 

taking  insufficient  receiptors  for  property  attached  or  sureties 
in  replevin  suits.1  For  a  failure  by  a  sheriff  to  return  goods 
attached  on  mesne  process  to  the  debtor,  after  the  plaintiff  in 
such  process  has  been  defeated,  the  statute  does  not  begin  to  run 
until  the  attachment  is  dissolved  by  the  act  of  the  plaintiff  therein 
or  by  operation  of  law.2  (a) 

SEC.  155.  Fraudulent  representations  in  Sales  of  Property. — 
In  an  action  to  recover  damages  for  fraudulent  representations 
made  in  the  sale  of  lands,  in  regard  to  incumbrances,  the  cause  of 
action  arises  at  once  upon  the  completion  of  the  sale  by  a  convey- 
ance of  the  land.3  In  such  cases,  the  fact  that  the  grantee  did  not 
discover  the  fraud  until  six  years  after  the  conveyance  is  of  no 
consequence,  as  it  is  the  misrepresentation  and  not  the  resulting 
damage  which  constitutes  the  ground  of  action;  and,  as  the 
fraud  might  have  been  discovered  by  an  examination  of  the 
proper  records,  the  fault  is  the  grantee's  if  he  has  failed  to  use 
that  diligence  which  common  prudence  suggests  in  ascertaining 
the  truth,  {b) 

There  is  also  a  wide  distinction  between  a  case  where  the  action 

principal,  and  the  statute  runs  from  that  time.  Ibid.;  Rice  v.  Hosmer,  12  Mass. 
126.  And  an  action  against  him  for  an  insufficient  return  on  an  original  writ 
begiriS  to  run  from  the  time  when  the  wril  was  returned.  Miller  v.  Adams,  16 
Mass.  456. 

1  Harriman  v.  Wilkins,  20  Me.  93. 

1  Bailey  v.  Hall,  16  Me.  408. 

3  Northrop  v.  Hill.  61  Barb.  (N.  Y.)  136.  In  Owen  v.  Western  Savings  Fund, 
97  Penn.  Si.  47,  it  was  held  that  the  statute  begins  to  run  against  a  recorder  of 
deeds  for  a  false  certificate  of  search  from  the  time  when  the  search  was  given, 
and  not  from  the  time  when  damage  was  sustained. 

(a)  As  to  the  bonds  of  public  officers,  lhan    six    years  later.      If  a  person,  in 

such   as   sheriffs  or  auditors,  the    rule  good     faith,     guarantees    a    signature 

appears  to  be  now  settled  that  an  action  which  is  in    fact   a  forgery,  the  guar- 

will  not  lie  against  the  sureties  on  such  antor's     implied     promise     is    broken 

a   bond   after   the   cause   of   action,  as  when  it  is  made;  the  right  of  action  ac- 

against     the     principal,     has    become  crues    immediately,     and    the    statute 

barred.      Paige  v.  Carroll,  61  Cal.  211 ;  runs   from    the   date  of   the   guaranty. 

Sonoma  County  v.    Hall,  129  Cal.  659;  Lehigh  Coal  &   Nav.  Co.  v.  Blakeslee, 

Stale   7/.  Conway,    18  Ohio,  234;   Ryus  189  Penn.  St.  13.      Upon  an  illegal  reso- 

'. ruble,    31    Kansas,   767;    Davis   v.  lution    of    directors    of    a    corporation, 

Clark,  58  Kansas,  454;  Spokane  County  authorizing  a  payment  of  its  money  to 

v.   Prescott,  ig  Wash.  418.  the  president,  the  statute  begins  to  run 

(;)   In    Binney's    Appeal,    116    Penn.  in    their   favor   from    the  date  of   such 

St.  109,  the  statute  was  held  to  run  from  resolution,    and    not   from   the   date  of 

the  erroneous  entry  of   satisfaction   on  the    payment  of   the  money.      Link   v. 

the  record  ol  a   mortgage,  though   the  McLeod,  194  Penn.  St.  566. 
plaintiff's  loss  did  not  oct  ur  until  more 


§§  !5^»   I57«]    MISCELLANEOUS    CAUSES    OF   ACTION.  377 

is  predicated  upon  the  fraud  of  a  party  in  the  sale  of  property, 
or  where  he  has  fraudulently  thrown  a  person  off  his  guard,  and 
prevented  such  an  investigation  as  would  have  revealed  the  truth, 
and  one  which  is  predicated  upon  a  breach  of  contract  of  war- 
ranty, however  false  the  warranty  may  be.  In  the  former  case 
the  statute  would  not  begin  to  run  until  the  fraud  was,  or  rea- 
sonably could  have  been,  discovered;  while  in  the  latter  case  the 
statute  begins  to  run  at  once,  although  there  was  no  means  by 
which  the  vendee  could  have  ascertained  the  falsity  of  the 
warranty.1 

Sec.  156.  When  Leave  of  Court  to  sue  is  necessary.  Effect  of 
on  Commencement  of  Limitation.  —  When  an  action  cannot  be 
brought  until  leave  to  sue  is  granted  by  a  court,  especially  when 
this  preliminary  is  imposed  by  statute,  the  statute  of  limitations 
does  not  begin  to  run  upon  the  cause  of  action  until  such  leave 
has  been  granted ; 2  although  if  a  party  has  slept  upon  his  rights 
unreasonably,  and  has  neglected  to  make  application  to  the  court 
for  leave  to  sue  for  such  a  period  of  time  that  his  demand  may 
fairly  be  regarded  as  stale,  it  would  seem  to  furnish  ample  ground 
for  a  refusal  by  the  court  of  the  necessary  leave  to  use  its  process 
to  enforce  the  claim.  It  would  be  exceedingly  unreasonable  to 
hold  that  the  statute  runs  upon  a  claim  when  the  party  has  no 
power  to  maintain  a  suit  thereon,  and  although  formerly  perhaps 
a  contrary  rule  would  have  been  held,  yet,  according  to  the  ten- 
dency of  the  courts  at  the  present  time,  there  can  be  no  question 
that  the  Minnesota  case  expresses  the  true  rule. 

SEC.  157.  Orders  of  Court.  —  The  statute  ordinarily  begins  to 
run  against  an  order  of  a  court  from  the  time  when  it  is  made, 
but  when  such  order  partakes  of  the  nature  of  an  interlocutory 
decree,  the  statute  does  not  begin  to  run  against  it  until  the  pro- 
ceedings are  at  an  end.  Especially  is  this  the  case  in  relation  to 
orders  of  probate  courts  made  during  the  progress  of  administra- 
tion, upon  which  it  is  held  that  the  statute  does  not  begin  to  run 
until  the  time  of  final  settlement.3 

1  See  Allen  v.  Ladd.  6  Lans.  (N.  Y.)  222;  Battley  v.  Faulkner,  3  B.  &  Aid.  288; 
Troup  v.  Smith,  20  Johns.  (NT.  Y.)  33;  Leonard  v.  Pitney,  5  Wend.  (N.  Y.)  30; 
Argall  v.  Bryant,  1  Sandf.  (N.  Y.)  98:  Allen  v.  Mille,  17  Wend.  (N.  Y.)  202. 

5   Wood  v.  Myrick,  16  Minn.  404. 

3  Tindal  v.  McMillan,  33  Tex.  484. 


$7%  STATUTES   OF   LIMITATION.  [CHAP.  XIII. 

Sec.    158.   Property  obtained  by  Fraud When   property   is 

obtained  by  fraud,  so  that  a  present  right  of  action  arises  either 
for  the  tort  or  for  the  value  of  the  property  under  an  implied 
contract,  the  statute  begins  to  run  from  the  time  when  the  fraud 
was,  or  by  the  exercise  of  reasonable  diligence  might  have  been, 
discovered ;  and  even  though  the  statute  may  have  run  against 
the  tort,  yet  an  action  upon  the  implied  contract  may  be  main- 
tained, unless  the  statute  has  also  run  upon  it.  Thus,  where  the 
maker  of  an  overdue  note  induced  the  payee  to  surrender  it  to 
him  without  payment,  by  fraud,  it  was  held  equivalent  to  obtain- 
ing so  much  money,  and  that  the  creditor  might  waive  the  tort 
and  maintain  an  action  for  money  had  and  received,  and  that  the 
statue  did  not  begin  to  run  until  the  fraud  was  actually  discov- 
ered, or  the  lapse  of  a  reasonable  time  within  which  the  plaintiff 
should  have  discovered  it.1  (a) 

Sec.  1 59.  Promise  to  marry.  —  A  promise  to  marry,  especially 
where  the  parties  thereto,  through  a  period  of  several  years,  do 
net  act  to  indicate  an  intention  or  purpose  not  to  fulfil  it,  is 
treated  as  a  continuous  promise,  and  the  statute  does  not  begin 
to  run  thereon  until  there  is  a  breach  thereof,  either  by  one  of 
the  parties  having  put  it  out  of  his  or  her  power  to  perform  it  by 
marrying  another  person,  or  by  notice  of  a  purpose  not  to  per- 
form it,  or  an  absolute  refusal  to  perform  it.2  That  is,  the  party 
setting  up  the  statute  as  a  defense  to  an  action  upon  such  a  con- 
tract must,  in  order  to  avail  himself  of  its  protection,  show  that 
the  contract  was  broken  by  him  in  such  a  manner  that  a  present 
right  of  action  against  him  thereon  has  existed  for  the  whole 
period  requisite  to  establish  the  statutory  bar.3 

Sec.  160.  Contracts  void  under  Statute  of  Frauds,  Actions  for 
Money  paid  under Where  money  has  been  paid  under  a  con- 
tract  that   is  void   under  the  statute  of  frauds,  because  not  in 

1   Penobscot  R.  R.  Co.  v.  Mavo,  67  Me.  470.     See  also  Oulhouse  v.  Outhouse, 
13  Hun  (N.  Y.)  130. 
1   l'.lackburn  v.  Mann,  85  111.  222. 
8  Id. 

in  Embezzlement,  by   one    member  money  had  and  received,  and  the  stat- 

of    a   firm  of   attorneys,  of   money  col-  ute   of    limitations   applicable    to    that 

lected    for   a    client  does  not  establish  form  of  action  is  the  only  one  that  ap- 

fraud   committed    by  his   innocent   co-  plies  to  him.     Gibson  v.  Henley  (Cal.), 

partner  because  of  the  partnership  re-  63  Pac.  61. 
[alion;     the    latter    is    liable    only    for 


"§§l6l,  162.]     MISCELLANEOUS   CAUSES   OF   ACTION.  379 

writing,  the  statute  does  not  begin  to  run  upon  an  action  to 
recover  it  back  from  the  time  when  it  was  paid,  but  rather  from 
the  time  when  the  other  party  has  done  some  decisive  act  evinc- 
ing an  intention  to  rescind  the  contract.1  Until  that  time,  no 
right  of  action  exists;  and,  as  the  statute  does  not  attach  until  a 
full,  complete,  and  present  right  of  action  exists,  it  follows,  of 
course,  that  the  statute  does  not  begin  to  run  until  such  right 
arises,  by  a  refusal  of  the  party  to  perform  the  contract  under 
which  the  money  was  paid.2 

SEC.  161.  Against  Heirs,  when  Tenancy  by  Curtesy  or  Dower 
exists.  —  The  statute  does  not  begin  to  run  against  the  heirs  of 
a  married  woman  whose  husband  survives  her,  and  is  entitled  to 
an  estate  in  her  lands  as  tenant  by  curtesy,  until  his  estate  is 
terminated  therein; 3  and  the  same  rule  prevails  where  there  is  a 
tenancy  by  dower  in  a  husband's  lands,  the  rule  being  that  the 
statute  does  not  begin  to  run  against  a  person  entitled  to  an 
estate  in  remainder  until  he  or  she  has  a  right  of  possession.4 

SEC.  162.  Actions  against  Sureties  on  Administrator's  Bonds.  — 
Ordinarily  the  statute  will  not*  begin  to  run  in  favor  of  the 
sureties  on  an  administrator's  bond,  by  a  distributee  of  the  estate, 
until  his  administration  is  closed  ;  but  as  his  death,  before  the 
estate  is  settled,  determines  his  trust,  the  statute  begins  to  run 
against  the  distributees  in  favor  of  the  sureties,  from  the  date  of 
his  death.5  In  Maryland,  under  the  statute  of  1798  the  statute 
of  limitations  begins  to  run  on  a  guardian's  bond  from  the  time 
it  was  passed.6  (a) 

1  Collins  v.  Tayer,  74  111.  138. 

5  Cairo,  elc,  R.  R.  Co.  z:  Parks,  32  Ark.  131. 

3  Dyer  v.  Brannock,  66  Mo.  391. 

4  Bailey  v.  Woodbury,  50  Vt.  166. 

6  Harrison  v.  Heflin,  54  Ala.  552:  Biddle  v.  Wendell,  37  Mich.  452. 
6  State  v.  Miller,  3  Gill  (Md.)  335. 

(a)  In  Massachusetts  when  a  cause  Read,  8  Cush.  (Mass.)  365;  Fuller  v. 
of  action  for  the  breach  of  an  adminis-  Cushman,  170  Mass.  286.  In  Minne- 
trator's  bond  arises  from  his  failure  to  sota,  it  has  recently  been  held,  over- 
account  within  one  year,  and  is  barred  ruling  two  earlier  decisions  in  that 
by  the  statute  of  limitations,  his  State,  that,  as  to  suit  upon  such  a  bond, 
neglect  to  render  an  account,  when  the  statute  runs  from  the  final  decree 
cited  so  to  do  by  the  Probate  Court,  is  of  distribution,  the  obtaining  leave  of 
an  independent  breach  which  is  not  court  to  sue  being  treated  as  not  a  part 
barred  by  the  lapse  of  twenty  years  of  the  cause  of  action.  Ganser  v. 
'from  the  date  of  the  bond.     Prescott  v.  Ganser  (Minn.).  86  N.  W.  18. 


380  STATUTES   OF   LIMITATION.  [CHAP.   XIII. 

SEC.  163.  Actions  against  Guardians  by  Wards.  —  An  action  by 
a  ward  against  a  guardian  for  a  settlement  does  not  accrue  until 
the  relation  is  terminated ; '  (a)  but  if  a  female  ward  marries, 
before  she  becomes  of  age,  with  an  adult  husband  capable  of 
suing  to  enforce  her  rights,  the  relation  ceases,  and  the  statute 
begins  to  run  from  the  date  of  the  marriage.3  A  right  of  action 
does  not  accrue  to  a  guardian  to  recover  of  his  ward  for  expenses 
incurred,  until  the  termination  of  the  guardianship ;  and  the  rule 
is  not  changed,  or  his  rights  in  this  respect  affected,  by  the  cir- 
cumstance that  the  ward  removes  to  another  state  before  he 
becomes  of  age.3  When  a  guardian  is  removed  from  his  trust, 
and,  subsequently  thereto,  sales  made  by  him  are  set  aside,  and 
he  is  compelled  to  refund  the  money  received  therefrom,  the 
statute  begins  to  run  from  the  time  the  sales  are  set  aside  and  the 
money  refunded,  and  not  from  the  time  of  settling  his  guardian- 
ship account.4 

1  Alston  v.  Alston,  34  Ala.  15;  Caplinger  v,  Stokes,  Meigs  (Tenn.)  175.  In 
Louisiana,  the  action  of  a  minor  against  his  tutor,-  respecting  the  acts  of  his 
tutorship,  is  prescribed  by  four  years  from  ihe  time  he  becomes  of  age,  and 
the  tacit  mortgage  given  him  by  law  against  the  property  of  the  tutor  is 
extinguished  at  the  same  time.  Aillol  y.  Aubert,  20  La.  An.  509,  If  a  person, 
without  legal  authority  to  do  so,  assumes  to  act  as  guardian  for  another,  and 
as  such  receives  money  belonging  to  the  ward,  the  statute  begins  to  run  against 
him  at  once,  unless  there  is  some  existing  disability.  Johnson  v.  Smilh,  27 
Mo.  591. 

5  Finnell  v.  O'Neal,  13  Bush  (Ky.),  176. 

3  Taylor  v.  Kilgore,  33  Ala.  214. 

4  Shearman  v.  Akins,  4  Pick.  (Mass.)  283.  In  Henderson  v.  Henderson,  54 
Md.  332.  it  was  held  that  the  statute  begins  to  run  upon  a  guardian's  bond 
immediately  upon  the  ward  becoming  of  age.  "  From  the  moment  the  ward 
is  emancipated  from  the  authority  of  his  guardian,  by  reaching  the  age  pre- 
scribed by  law,  his  cause  of  action  is  complete,  and  the  statute  of  limitations 
begins  to  run."  Dorsey,  J.,  in  Green  r.  Johnson,  3  G.  &  J.  CMd.)  387.  See 
also  Munroe  v.  Phillips,  65  Ga.  396.  In  Henderson  v.  Henderson,  supra,  Irv- 
ing, J.,  in  remarking  upon  the  provision  of  the  Code  providing  that  "  on  the 
ward's  arrival  at  age  "  the  guardian  shall  pass  his  account  and  pay  over  the 
monevs  in  his  hand,  says,  "  So  long  as  he  (the  guardian)  delayed,  it  was  not  a 
new  breach,  but  a   continuing  default  and  a   continuing   breach."     Alvey,  J., 

(tf;  See  State  v.  Parsons,  147  Ind.  586;  natural  guardian  for  his  infant  son,  the 

Pote-r        Do  u  el  ass,  83  Iowa,   [go;  Hale  latter's   coming  of   age  does  not  alter 

Ellison     (Tenn.),     5<)    S.     \V.     673;  such  possession,  and,    if  nothing  else 

Slaughter  v.  Slaughter,  7  Houst.  (Del.)  has  occurred   to  change  its  character. 

In    Tinker   v.    Rodwell,  69  L.  T.  the  statute  of  limitations  does  not  begin 

591,  it    was   held    that,    when    a   father  to   run    in  favor  of  a   person  claiming 

is    into    possession     of    realty    as  against  the  son,  until  the  father's  death. 


§§  164,  165.]     MISCELLANEOUS   CAUSES   OF   ACTION.  381 

SEC.  164.  Assessments,  Taxes.  &c. — •  Where  an  assessment  or 
tax  is  laid,  and  by  ordinance  or  statute  a  certain  time  is  fixed 
within  which  it  may  be  paid,  the  person  against  whom  it  is  laid 
has  the  whole  of  such  period  within  which  to  pay  it,  and  the 
statute  does  not  begin  to  run  thereon  until  such  time  has  expired. 
Thus,  where  an  assessment  was  imposed  by  an  ordinance  which 
piuvided  that,  unless  paid  within  twenty  days,  the  debtor  should 
be  subjected  to  penalty  and  interest,  it  was  held  that  the  statute 
began  to  run  from  the  expiration  of  the  twenty  days; '  and  the 
same  rule  applies  in  the  case  of  taxes.  If  the  statute  or  the  note 
under  which  it  was  raised  specifies  a  certain  time  within  which  it 
shall  be  paid,  the  taxpayer  has  the  whole  of  that  period  to  pay  it 
in,  and  the  statute  does  not  begin  to  run  until  such  period  has 
elapsed. 

SEC.  165.  Agreement  to  pay  Incumbrances.  —  Where  the 
grantee  of  land  assumes  and  agrees  to  pay  certain  incumbrances 
on  the  land,  and  no  time  is  fixed  within  which  he  shall  pay  them, 
he  is  treated  as  contracting  to  pay  them  as  they  mature;  and  in 
such  a  case,  where  the  incumbrances  at  the  time  the  deed  is 
delivered  have  not  matured,  the  statute  would  not  begin  to  run 
upon  his  contract  until  such  incumbrances  became  due ;  but  if 
they  are"  due  at  the  time  the  contract  is  made,  the  statute  begins 
to  run  in  his  favor  from  the  time  when  he  accepted  the  deed.2 
Where,  however,  the  grantor  is  to  pay  the  incumbrances,  the 
statute  does  not  begin  to  run  against  the  grantee's  right  to  recover 
back  his  purchase-money,  &c,  until  he  has  been  evicted  in  con- 
sequence of  the  nonpayment  of  the  incumbrances  by  the  grantor.3 

dissented,  and  insisted  that  the  statute  did  not  begin  to  run  until  the  balance 
due  had  been  ascertained  by  a  settlement  of  his  accounts  in  the  Orphan's  Court; 
citing  Thurston  v.  Blackiston,  36  Md.  501;  Byrd  v.  Stewart,  44  id.  492;  Griffith 
v.  Parks,  32  id.  1,  8;  Sanders  v.  Coward,  15   M.  &  W.  48. 

1  Reynolds  v.  Green,  27  Ohio  St.  416.  See  White  v.  City  of  Brooklyn,  122  N. 
Y.  53;  Reid  v.  Supervisors,  128  N.  Y.  364;  In  re  Rosenbaum,  119  id.  24;  In  re 
Duly,  133  id.  512.  In  People  v.  Wemple,  133  N.  Y.  617,  it  was  held  that  thete 
is  no  limitation  as  to  the  time  in  which  a  corporation  may  apply  to  the  comp- 
troller for  a  revision  of  a  tax  levied  upon  it,  under  the  provision  of  the  act  pro- 
viding for  the  taxation  of  certain  corporations  as  amended  in  1889,  which  author- 
izes that  officer  to  revise  and  readjust  tax  accounts  against  corporations 
theretofore  settled. 

s  Schmacker  v.  Sibert,  18   Kan.  104. 

3  Taylor  v.  Barnes,  69  N.  Y.  430. 


382  STATUTES   OF   LIMITATION.  [CHAP.   XIII. 

SEC.  166.  General  Provisions.  —  In  many  of  the  statutes  after, 
specifically  providing  for  certain  classes  of  actions,  there  is  a  gen- 
eral provision,  by  which  it  is  provided  that  all  causes  of  action 
not  limited  by  any  previous  sections  of  the  statute  shall  be  brought 
within  a  certain  period.  Thus,  in  Maine,1  it  is  provided  that 
"  all  personal  actions  on  any  contract,  not  limited  by  the  fore- 
going sections,  or  any  other  law  of  the  State,  shall  be  brought 
within  twenty  years  after  the  accruing  of  the  cause  of  action;  " 
and  a  similar  provision  exists  in  Massachusetts,2  Michigan,3  and 
Wisconsin.4  In  Ohio,5  it  is  provided  that  all  other  actions  not 
enumerated  in  the  statute  shall  be  brought  within  four  years 
after  such  right  of  action  accrued.  This  clause  is  sweeping,  and 
embraces  every  species  of  action,  whether  upon  a  contract,  bond, 
deed  or  other  obligation,  or  for  any  act,  wrong  or  injury  not 
specially  provided  for.  In  Oregon,  an  equally  sweeping  clause 
exists,  which  limits  non-enumerated  causes  of  action  to  ten  years ; ft 
so  also  in  Nevada7  and  Nebraska,8  the  limitation  being  four 
years. 

SEC.  167.  For  Advances  npon  Property.  —  Where  money  is 
advanced  upon  property  in  store,  the  property  is  treated  as  the 
primary  fund  for  the  repayment  of  the  advances;  and,  as  an 
action  for  the  money  can  only  be  brought  when  the  consignee 
can  no  longer  look  to  the  property  for  reimbursement,  it  follows 
as  a  matter  of  course  that  the  running  of  the  statute  dates  from 
the  same  period.9 

Sec.  168.  Usurious  Interest.  —  Where  a  contract  is  usurious, 
and  the  usurious  interest  is  paid  in  advance  at  the  time  when  the 
contract  is  made,  the  statute  begins  to  run  against  the  person 
paying  it,  and  against  the  State,  where  it  is  made  an  indictable 
offense  at  once,  and  does  not  rest  in  abeyance  until  the  debt  is 
paid  ;  10  but  the  rule  as  to  an  action  to  recover  back  the  money 

1  Appendix,  Maine. 

2  Appendix,  Massachusetts. 

3  Appendix,  Michigan. 

*  Appendix,  Wisconsin. 
6  Sec.  1,  subd.  6. 

*  Appendix,  Oregon. 
1  Appendix,  Nevada. 

8  Appendix,    Nebraska. 

■  Grimes  v.  Hagood,  27  Tex.  693. 

'"  Com.  v.  Frost,  5  Muss.  53. 


§§168-171.]    MISCELLANEOUS   CAUSES   OF   ACTION.  383 

would  be  otherwise  where  the  usurious  interest  is  not  paid  until 
the  debt  matures.  In  no  event  can  a  right  of  action  accrue  until 
the  interst  is  paid,  (a) 

SEC.  169.  Between  Tenants  in  Common  of  Property.  —  Where 
property  belonging  to  two  persons  is  sold  by  one  of  them,  the 
statute  does  not  begin  to  run  from  the  time  of  sale,  but  from  the 
time  when  the  pay  therefor  is  received.  Thus,  in  an  action  by 
one  tenant  in  common  against  his  co-tenant  for  the  proceeds  of 
trees  sold  by  him,  it  was  held  that  the  statute  began  to  run  from 
the  time  of  payment,  not  of  sale;  and  that  if  a  note  was  taken 
upon  which  the  purchaser  from  time  to  time  made  payments,  the 
statute  begins  to  run  from  the  date  of  each  payment.1 

SEC.  I/O.  When  the  Law  gives  a  Lien  for  Property  sold.  —  In 
the  case  of  a  sale  of  property  consisting  of  several  parcels,  under 
a  special  contract,  where  the  law  gives  a  lien  therefor,  as  in  the 
case  of  a  sale  of  goods  to  a  vessel,  the  lien  attaches  on  the  day 
of  the  delivery  of  the  first  parcel,  but  the  statute  does  not  begin 
until  the  day  after  the  delivery  of  the  last  parcel.2  Of  course,  if 
a  term  of  credit  is  agreed  upon,  the  statute  does  not  attach  until 
the  credit  has  fully  expired. 

SEC.  171.  Co-purchasers,  Co-sureties,  &c.  —Where  one  of  two 
or  more  persons  who  have  become  jointly  liable  under  a  contract 
or  obligation,  whether  partners  or  not,  pays  the  whole  or  a  por- 
tion of  the  debt,  the  statute  attaches  from  the  time  of  each  pay- 
ment by  him  ; 3  but  this  rule  is,  of  course,  subject  to  the  excep- 
tion, that,  if  the  payment  :*s  made  before  the  debt  becomes  due, 
the  statute  will  not  apply  until  its  maturity.  It  has  been  held 
that,  even  where  the  liability  of  one  joint  maker  of  a  note  is 
barred  by  the  statute,  but  has  been  kept  on  foot  as  against  the 

1  Miller  v.  Miller,  7  Pick.  (Mass.)  133. 

s  The  Mary  Blane   v.  Beehler,  12  Mo.  477. 

3  Campbell  v.  Calhoun,  1   Penn.  140. 

(a)  As  to  usurious  transactions  with  ually  pays  usurious  interest  as  such, 

national  banks,  section  5198  of  the  U.  the  usurious  transaction   occurs  then, 

S.    Rev.    Stats,    distinguishes   between  and  not  before,  and  he  must  sue  within 

ihe  interest  which  a  negotiable  instru-  two  years  thereafter.    Brown  v.  Marion 

ment   carries   with  it,  and    which   has  Nat.    Bank,    169    U.    S.   416;    Daingeri 

been  agreed  to  be  paid  thereon,  and  in-  field    Nat.    Bank   v.    Ragland,    181    id. 

terest  already  paid.     If  an  obligee  act-  45. 


384  STATUTES   OF    LIMITATION.  [CHAP.    XIII. 

other  by  partial  payments  made  by  him,  he  may  nevertheless 
recover  of  the  other  a  moiety  of  the  amounts  so  paid  by  him, 
unless  the  statute  has  also  run  against  such  payments; '  and  this 
doctrine  is  well  grounded  in  principle  and  sustained  by  author- 
ity,2 the  rule  being  that  the  statute  only  begins  to  run  from  the 
date  of  each  payment.3  (a) 

1  Peaslee  v.  Breed,  18  N.  H.  489. 

2  Bullock  v.  Campbell,  9  Gill  (Md.),  182;  Brown  v.  Agnew,  6  W.  &  S.  (Penn.) 
235;  Sherwood  v.  Dunbar,  6  Cal.  53;  Lomax  v.  Pendleton,  3  Call  (Va.)  538; 
Buck  v.  Spofford,  40  Me.  32S;   Regis  v.  Hebert,  16  La.  Ann.  224. 

3  Bullock  v.  Campbell,  9  Gill  (Md.),  182. 

(a)  See  Gross  v.  Davis  (87  Tenn.  126),  v.  Duncan  (143  Mo.  613),  65  Am.  St. 
10  Am.  St.  Rep.  635,  647,  n.;  Leeds  Rep.  678  and  n.  A  payment  by  one  of 
Lumber  Co.  v.  Haworth  (98  Iowa,  463),  several  persons  who  are  severally  or 
60  id.  399,  n.  When  the  statute  has  jointly  and  severally  liable  for  a  debt 
run  against  one  of  two  parties  entitled  does  not  prevent  ihe  statute  running  in 
to  a  joint  action,  it  is  a  bar  to  such  joint  favor  of  ihe  others.  In  re  Wolmers- 
action.  Shipp  v.  Miller,  2  Wheat.  (U.  hausen,  62  L.  T.  541.  But  a  payment 
S.)  316,  324;  Davis  v.  Coblens,  174  U.  of  interest  by  one  ol  several  joint  obli- 
S.  719,  725;  Dickey  v.  Armstrong,  gors  in  a  bond,  or  of  different  co-makers 
1  A.  K.  Marsh.  (Ky.)  39.  It  is  usually  of  a  note,  before  the  stalute  of  limita- 
held  that  one  joint  debtor  cannot  revive  tions  attaches,  takes  the  case  out  of  the 
a  debt  barred  by  the  statute  of  limita-  statute  as  to  the  others.  Craig  v.  Cal- 
tions,  as  against  his  co-debtors,  with-  laway  County  Court,  12  Mo.  94;  Ben- 
out  their  consent.  State  Loan  &  Trust  nett  v.  McCanse,  65  Mo.  194.  See 
Co.  v.  Cochran,  130  Cal.  245;  McKen-  Bergman  v.  Bly,  66  Fed.  Rep.  40; 
nev  v.  Bowie,  94  Me.  397;  Conn.  Trust  Woonsocket  Sav.  Inst.  v.  Ballou,  16 
Co',  v.  Wead,  67  N.  Y.  S.  416,  69  id.  R.  I.  351. 
518.     See  32  Am.  L.  Rev.  846;  Maddox 


§   172.]  SPECIALTIES.  385 


CHAPTER  XIV. 
Specialties. 

SEC.   172.  Sealed  Instruments.  Sec.   175.  Bonds. 

173.  Covenants,      Quiet      Enjoy-  176.  Effect    of    Acknowledgment 

ment,  etc.  of    Payment    on    Special- 

174.  Covenants       of      Warranty,  ties. 

against    Incumbrances, 
etc. 

SEC.  172.  Sealed  Instruments.  —  In  all  those  States  where 
sealed  instruments,  or  "specialties,"  as  they  are  technically  called, 
are  expressly  brought  within  the  statute,1  the  statute  begins  to 
run  from  the  time  when  a  cause  of  action  arises  thereon,  and  the 
bar  is  complete  at  the  expiration  of  the  statutory  period,  while 
in  those  States  where  this  class  of  instruments  are  not  provided 
for,  the  common-law  presumption  of  payment  attaches  from  the 
time  when  a  cause  of  action  arises,  and  becomes  complete  as  a 
presumptive  bar  at  the  expiration  of  twenty  years  from  that 
time;2  and  the  mere  lapse  of  twenty  years  without  any  demand, 
of  itself  raises  a  presumption  of  payment.3  (a)     The  statement  of 

1  See  supra,  §§  31,  37,  for  instances  in  which  such  statutes  have  been  adopted 
in  different  States. 

*  Bass  v.  Bass,  8  Pick.  (Mass.)  187;  Jackson  v.  Sackett,  7  Wend.  (N.  Y.)  94; 
Oswald  v.  Leigh,  1  T.  R    271. 

8  Wanmaker  v.  Van  Buskirk,  1  N.  J.  Eq.  685;  Mease  v.  Stevens,  1  N.  J.  L. 
443;  Evans  v.  Huffman,  5  N.  J.  Eq.  354;  Moore  v.  Smith,  81  Penn.  St.  182; 
Henderson  v.  Lewis,  9  S.  &  R.  (Penn.)  379.  But  in  Vermont,  where,  by  statute, 
the  prescriptive  period  is  fifteen  years,  such  a  presumption  is  raised  from  the 
lapse  of  that  period.     Whitney  v.  French,  25  Vt.  663. 

"  It  is  manifest  that  this  doctrine  of  twenty  years'  presumption  was  first  taken 

(a)  Presumptions   under   the  statute  strong  as  that  required  to  take  a  case 

of  limitations  do  not  always  have  the  out  of   the   general   statute  of    limita- 

same  force   and   effect.     Thus,    under  tions,  but  any  legal  evidence  tending  to 

the  Mass.  Pub.  Stats.,  c.  197,  §  23,  pro-  show  that  the  judgment  has  not  been 

viding  that  "  every  judgment  and  de-  satisfied  is  competent,    and  if    it   con- 

cree  of  a  court  of  record  of  the  United  vinces  that  such  is  the  case,  it  is  suffi- 

Statcs,    or  of   this  or  any  other   State,  cient    to   rebut  the  presumption,  even 

shall  be  presumed  to  be  paid  and  satis-  though  it  would  be  of  no  avail  against 

fie'd  at  the  expiration  of  twenty  years  the    general     statute    of     limitations, 

after  the  judgment  or  decree  was  ren-  Walker  v.    Robinson,    136   Mass.    280; 

dered,"  the   evidence   need   not   be  as  Day  v.  Crosby,  173  Mass.  433. 
[stats,  of  lim. —  25] 


386  STATUTES   OF   LIMITATION.  [CHAP.    XIV. 

the  law  by  Buller,  J.,  in  the  case  last  cited,  is  generally  adopted 
in  this  country ;  and  mere  lapse  of  time  less  than  twenty  years 
does  not  afford  any  ground  for  a  presumption  of  payment 
or    satisfaction    of    a    specialty,    whether    it    be   a   bond,  '  mort- 

up  by  Lord  Hale,  who  only  thought  it  a  circumstance  from  which  a  jury  might 
presume  payment.  In  this  he  was  followed  by  Lord  Holt,  who  held,  that  if  a 
bond  be  of  twenty  years'  standing,  and  no  demand  proved  thereon,  or  good 
cause  ot  so  long  forbearance  shown  on  solvit  ad  diem,  he  should  intend  it  paid. 

6  Mod.  22.  This  doctrine  was  afterwards  adopted  by  Lord  Raymond  in  the 
case  of  Constable  v.  Somerset,  Hil.  I  Geo.  II.,  at  Guildhall. 

"  This  opinion  seems  to  forlify  the  idea  which  I  took  up  at  the  trial,  in  answer 
to  a  dictum  which  was  then  cited  (i  Buir.  424),  that  the  question  of  presumption 
of  payment  within  a  less  time  than  twenty  years  had  been  left  to  a  jury,  which 
was  that  it  must  have  been  left  to  them  upon  some  evidence;  and  in  such  case 
the  slightest  evidence  is  sufficient.  In  one  of  the  Winchelsea  cases  (4  Burr. 
1963),  Lord  Mansfield  expressly  said  lhat  if  a  bond  had  lain  dormant  for  twenty 
years,  it  shall  be  presumed  to  be  paid.  The  court,  however,  inclinfng  to  believe 
the  real  truth  of  the  case  was  with  the  defendant,  desired  that  he  would  make 
an  affidavit;  which  being  read  upon  a  subsequent  day,  and  not  proving  satis- 
factory, they  discharged  the  rule.  And  Lord  Mansfield,  C.  J.,  said  that  there 
was  a  distinction  between  length  of  time  as  a  bar,  and  where  it  was  only  evi- 
dence of  it:  the  former  was  positive,  the  latter  only  presumptive;  and  he 
believed  that  in  the  case  of  a  bond  on  positive  time  had  been  expressly  laid 
down  by  the  court;   that  it  m'ght  be  eighteen  or  nineteen  years." 

In  this  country  it  is  generally  held  that  no  period  short  of  twenty  years  will 
raise  a  presumption  of  payment  of  a  bond,  Clark  v.  Bogardus,  2  Edw.  (N.  Y.) 
Ch.  387;  or  of  a  mortgage,  Grafton   Bank  v.  Doe,  19  Vt.  463;   Heyer  v.  Pruyn, 

7  Paige  (N.  Y.)  Ch.  465;  Ingraham  v.  Baldwin,  9  N.  Y.  45;  or  a  covenant  of 
any  kind,  Johnson  v.  Stockton,  6  B.  Mon.  (Ky.)  408.  Eighteen  years  and  a 
half  has  been  held  not  sufficient  as  to  a  bond.  Boliz  v.  Bullman,  1  Yeates 
(Penn.)  584;  Lesley  v.  Nones,  7  S.  &  R.  (Penn.)  410;  Hughes  v.  Hughes,  54 
Penn.  St.  240.  Such  a  presumption  may,  in  connection  with  other  circum- 
stances, be  raised  by  the  lapse  of  a  less  period,  Moore  v.  Smith,  81  Penn.  St. 
182;  Henderson  v.  Lewis,  9  S.  &  R.  (Penn.)  379;  but  to  have  that  effect  it 
must  be  aided  by  persuasive  circumstances,  Hughes  v.  Hughes,  supra. 

Courts  of  equity  act  in  analogy  to  the  statute  of  limitations;  and  if,  in  a  suit 
for  the  foreclosu-e  of  a  mortgage,  the  lapse  of  time  be  such  that  the  orator 
coul:l  not  maintain  a  suit  at  law  for  the  recovery  of  the  mortgaged  premises,  a 
court  of  equity  would  presume  payment  and  satisfaction  of  the  mortgage  debt. 
This  period  is  fixed,  by  statute,  in  Vermont,  at  fifteen  years.  Martin  v.  Bowker, 
19  Vt.  526.  See  also  McDonald  v.  Sims,  3  Kelly  (Ga.),  383;  Field  v.  Wilson,  6 
I'..  Mon.  (Ky.)  479.  But  the  payment  of  interest  upon  the  debt,  by  the  defend- 
ant or  of  any  portion  of  the  principal,  or  any  other  act  recognizing  the  exist- 
ence of  the  mortgage,  and  that  it  was  unsatisfied  and  obligatory  upon  him. 
would  be  sufficient  to  repel  the  presumption  of  payment,  and  take  the  case  out 
of  tli"  operation  of  the  statute.      Martin  v.  Bowker,  19  Vt.  526. 

1  Diamond  v.  Tobias,  12  Penn.  St.  312;  Brubaker  v.  Taylor,  76  id.  83;  Moore 
7/.  Smilh,  81  id.  182;   Miller  v.  Smith,  14  Wend.  (N.  Y.)  425.     That  this  presump 


§   172.]  SPECIALTIES.  387 

gage,1  judgment,2  legacy,3  notes  under  seal,4  or  any  instrument  in 
the  nature  of  a  specialty,5  as  recognizances,  rent  reserved  in  deeds," 
or  arrears  of  ground-rent,  taxes  on  leased  lands;7  and  that  the 

tion  does  not  avail  in  less  than  twenty  years  as  to  any  specialty,  see  Heyer  v. 
Pruyn.  7  Paige  (N.  Y.)  465,  and  this  was  held  as  to  bonds.  Clark  v.  Bogardus, 
2  EJw.  (N.  Y.)  Ch.  387.  A  lapse  of  eighteen  years  and  a  half  was  held  not 
sufficient  to  raise  a  presumption  that  a  bond  was  void.  BolU  v.  Bullman,  1 
Yeaies  (Penn.)  584;  Hughes  v.  Hughes,  54  Penn.  St.  240;  Dehart  v.  Card.  Add, 
(Penn.)  344;  M'Carty  v.  Gordon,  4  Whirl.  (Penn.)  321;  Lesley  v.  Nones,  7  S. 
&  R.  (Penn.)  410;  nor  will  the  lapse  of  any  time,  short  of  twenty  years,  per  se 
raise  such  a  presumption.  Henderson  v.  Lewis,  9  S.  &  R.  (Penn.)  379.  Twelve 
years  was  held  insufficient.  Kinna  v.  Smith,  3  N.  J.  Eq.  14;  Rogers  v.  Burns, 
27  Penn.  St.  525.  And  this  includes  all  species  of  bonds,  official  or  otherwise, 
where  the  statute  provides  no  special  period  of  limitation,  Backestoss  v.  Comm., 
8  Watts  (Penn.).  286;  Diemer  v.  Sechrist,  1  Penn.  St.  419;  or  recognizances, 
Ankeny  v.  Penrose,  18  Penn.  St.  roo;  Darlington's  Appropriation,  13  id.  430; 
Allen  v.  Sawyer,  2  P.  &  W.  (Penn.)  325:  Galbraith  v.  Galbraith,  6  Watts  (Penn.) 
112. 

1  Flagg  v.  Ruden,  1  Bradf.  (N.  Y.  Surr.)  192:  Bander  v.  Snyder,  5  Barb.  (N. 
Y.)  63;  Reynolds  v.  Green,  10  Mich.  355;  Howard  v.  Shurtleff,  2  Met.  (Mass.) 
26;  Martin  v.  Bowker,  19  Vt.  526;  Hoffman  v.  Harrington,  33  Mich.  392;  Inches 
v.  Leonard,  12  Mass.  379;  Donald  v.  Sims,  3  Kelly  (Ga.),  383;  Cheever  v.  Per- 
ley,  11  Allen  (Mass.)  584;  Bacon  v.  Mclntire,  8  Mel.  (Mass.)  87;  Hughes  v. 
Edwards,  9  Wheat.  (U.  S.)  498;  Peck  v.  Mallams,  10  N.  Y.  509;  Wilkinson  v. 
Flowers,  37  Miss.  579;  Newcomb  v.  St.  Peter's  Church,  2  Sandf.  (N.  Y.)  Ch. 
636;  Collins  v.  Torry,  7  id.  278;  Field  v.  Wilson,  6  B.  Mon.  (Ky.)  479;  Jackson 
v.  Wood,  12  Johns.  (N.  Y.)242;  Giles  v.  Baremore,  5  Johns.  (N.  Y.)  Ch.  545, 
552;  Cleveland  Ins.  Co.  v.  Reed,  24  How.  (U.  S.)  284;  Downs  v.  Sooy,  28  N.  J. 
Eq.  55;  Green  v.  Fricker,  7  W.  &  S.  (Penn.)  171;  or  any  lien,  Brock  v.  Savage, 
31  Penn.  St.  410.     See  Chap.  XVIII.,  Mortgages. 

2  Miller  v.  Smith,  supra;  Cope  v.  Humphreys,  14  S.  &  R.  (Penn.)  15;  Sum- 
merville  v.  Holliday,  1  Watts  (Penn.),  507;  Denny  7/.  Eddy,  22  Pick.  (Mass.)  533. 
But  the  presumption  does  not  attach  until  the  judgment  is  complete;  that  is, 
until  the  amount  is  fixed,  both  debts  and  costs.     Wills  v.  Gibson,  7  Penn.  St. 

154 

3  Foulk  v.  Brown,  2  Watts  (Penn.)  209;  Strohm's  Appeal,  23  Penn.  St.  351; 
Kingman  v.  Kingman,  121   Mass.  249. 

4  Rickert  71.  Geistwite,  1   Pittsb.  (Penn.)  153. 

5  Galbraith  v.  Galbraith,  6  Watts  (Penn.)  112;  Ankeny  v.  Penrose,  18  Penn. 
St.  190;   Allen  v.  Sawyer,  2  P.  &  W   (Penn.)  325. 

6  McGuesney  v.  Hiester,  33  Penn.  St.  435;  St.  Mary's  Church  v.  Miles,  I 
Whart.  (Penn.)  229;  or  rent  reserved  by  deed,  Bailey  v.  Jackson,  16  Johns.  (N. 
Y.)  210;  Lyon  v.  Odell,  65  N.  Y.  28. 

1  McLaughlin  v.  Kain,  45  Penn.  St.  113;  Woodburn  v.  Farmers',  etc.,  Bank, 
5  W.  &  S.  (Penn.)  447.  Municipal  assessments  are  presumed  to  have  been 
paid  by  lapse  of  twenty  years.  Ex  parte  Serrell,  9  Hun  (N.  Y.)  283;  Fisher  v. 
New  York,  6  id.  64;  Ex  parte  Striker  71  N.  Y.  603.  Such  assessments  are 
treated  as  in  the  nature  of  judgments,  Mayor  v.  Colgate,  12  N.  Y.  140.     But  in 


388  STATUTES   OF   LIMITATION.  [CHAP.   XIV. 

consideration  named  in  a  deed  as  received  has  been  paid.1  In 
Pennsylvania  where  the  parties  had  made  a  parol  partition  of 
lands,  with  an  agreement  for  an  owelty  of  partition  after  the  lapse 
of  twenty  years,  it  was  held  that  payment  of  the  same  would  be 
presumed  ;  and  it  may  be  stated  as  a  general  proposition  that  this 
presumption  attaches  to  every  species  of  specialty  claim.5  But 
it  must  be  borne  in  mind  that,  unless  the  instrument  or  obliga- 
tion creates  a  present  right  of  action,  the  presumption,  like  the 
statute,  only  attaches  from  the  time  when  the  right  of  action 
accrued.  But  being  a  common-law  presumption,  even  though 
it  is  also  made  so  by  statute,  it  may  be  set  up  by  a  defendant, 
whether  he  is  a  resident  of  the  State  in  which  the  action  is 
brought  or  not ; 3  the  distinction  being,  that  where  the  statutory 
presumption  is  relied  upon  it  should  be  pleaded,  while  the  com- 
mon-law presumption  is  a  mere  matter  of  evidence,  and  may  be 
urged  at  the  trial  without  having  been  pleaded.  There  is  still 
another  distinction  between  a  presumption  raised  by  the  law  and 
one  that  is  prescribed  by  the  statute ;  and  that  is,  that  the  latter 
is  absolute,  unless  made  otherwise  in  terms,  while  the  former  is 
dependent  upon  a  variety  of  circumstances  which  (as  we  have 
seen)  may  entirely  destroy  its  force.  In  New  York4  the  pre- 
sumption may  be  repelled  by  proof  of  payment  of  some  part,  or 
by  a  written  acknowledgment.  In  North  Carolina,5  the  presump- 
tion is  reduced  to  ten  years,  except  as  to  mortgages,  which  is 
thirteen  years,  subject  to  the  same  rules  as  exist  at  common  law. 
In  Arkansas6  similar  provisions  exist,  except  that  payment  of 
part,  or  a  written  acknowledgment,  is  necessary  to  remove  the 
presumption;  so  also  in  Missouri,7  except  that  the  period  is 
twenty  years.  In  England,  by  Stat.  3  &  4  Wm.  IV.,  c.  42,  spe- 
cialties are  brought  within  the  statute,  and  are  barred  in  ten 
years. 

New  York  this  species  of  assessmenls  is  confirmed  by  the  courts,  and  for  that 
reason  properly  partake  of  the  nature  of  judgments;  but  when  they  are  not 
required  to  be  so  affirmed,  they  cannot  in  any  sense  be  said  to  have  any  of  the 
attributes  of  a  judgment. 

i'rvor  v.  Wood,  31  Penn.  St.  142. 

•'   rliggs  v.  Stimmel,  3  P.  &  W.  (Penn.)  115. 
inderson  v.  Olmsted,  1  Chand.  (Wis.)  190. 

4   See  Appentlix. 

k  See  Appendix. 

8  Sr-e  Appendix. 

1   See  Appendix. 


§  I73-]  SPECIALTIES.  3S9 

Sec.  173.  Covenants,  Quiet  Enjoyment,  &c.  —  There  is  often  a 
question  as  to  covenants  of  a  more  or  less  continuous  nature, 
such  as  covenants  for  title  and  quiet  enjoyment,  as  to  how  far  in 
those  States  where  the  statute  embraces  specialties  they  are 
within  the  statute.  In  an  English  case,'  arising  under  the  statute 
3  &  4  Wm.  IV.,  Kelly,  C.  B.,2said:  "There  is  a  distinction 
between  the  covenant  for  title  and  the  covenant  for  quiet  enjoy- 
ment. The  covenant  for  title  is  broken  by  the  existence  of  an 
adverse  title  in  another,  as  in  this  case,  by  a  lease,  its  mere 
existence  rendering  the  land  of  less  value. 3{a)  The  covenant  for 
quiet  enjoyment  is  broken  only  when  the  covenantee  is  disturbed, 
as  in  this  case  by  the  entry  into  the  mine  and  the  taking  the 
fragments   of  coal   in  1848.4     The  deed  of  purchase  having  con- 

1  Spear  v.  Green,  L.  R.  9  Ex.  99. 

''  Id.  116.  The  judgment  of  the  majority  of  the  court  in  the  case  was  differ, 
ent  from  that  of  the  Chief  Baron,  but  principally  upon  different  grounds.  The 
facts  of  the  case  sufficiently  appear  from  the  judgment.  Banning  on  Limita- 
tions. 177-187. 

3  If  the  grantor  was  not  seised,  the  covenant  of  seisin  is  immediately  broken. 
Greenby  v.  Wilcocks,  2  Johns.  (N.  Y.)  1;  Bingham  v.  Weiderwax,  1  N.  Y.  509; 
Hamilton  v.  Wilson,  4  Johns.  (N.  Y.)  72;  Grannis  v.  Clark,  8  Cow.  (N.  Y.)  36; 
M'Carty  v.  Leggett,  3  Hill  (N.  Y)  134;  Scantlin  v.  Allison,  12  Kan.  85;  Coleman 
v.  Lyman,  42  Ind.  289;  Dale  v.  Shively,  8  Kan.  276;  Salmon  v.  Vallejo,  41 
Cal.  481.  But  it  was  held  in  Scott  v.  Twiss,  4  Neb.  133,  that  if  the  grantor  was 
in  exclusive  possession  under  claim  of  title,  the  covenant  of  seisin  is  not  broken 
until  the  purchaser  or  those  claiming  under  him  are  evicted  by  title  paramount. 
To  constitute  a  breach,  the  person  claiming  title  must  have  had  a  valid  right 
thereto.     Jerald  v.  Elly,  51  Iowa,  321. 

4  As  illustrative  of  the  time  when  the  statute  begins  to  run  for  breaches  of  a 
covenant  for  quiet  enjoyment,  it  may  not  be  amiss  to  give  instances  of  acts 
which  constitute  a  breach.  Breaches  of  this  covenant  may  occur  either  by  a 
molestation  arising  from  a  suit  at  law  or  in  equity  relating  to  the  title  or  pos- 
session, or  by  any  act  by  which  the  lessee  is  disturbed  in  the  possession  of  the 

(a)  The  covenants  of  warranty  and  69  Me.  510;  Jevvett  v.  Fisher,  g  Kan. 
of  quiet  enjoyment  being  prospective,  App.  630;  Loring  v.  Groomer,  142  Mo.  1, 
an  actual  ouster  or  eviction  is  necessary  In  New  York,  the  covenant  of  quiet 
to  constitute  a  breach  of  them  as  enjoyment  is  not  broken  until  there  is 
ground  for  an  action;  but  the  covenants  an  eviction,  actual  or  constructive,  from 
of  seisin,  of  a  right  to  convey,  and  the  premises  conveyed,  or  some  part 
of  freedom  from  incumbrances,  are  thereof;  but  when  there  is  an  out- 
personal  and  unassignable  covenants,  standing  title  to  an  easement  in  the 
which  are  broken  as  soon  as  the  deed  premises  conveyed,  materially  inter- 
is  made,  if  they  are  not  tiue;  and  as  a  fering  with  the  possession  and  use  of 
cause  of  action  accrues  at  once,  limita-  some  portion  thereof,  the  covenant  is 
tion  then  begins  to  run.  Howard  v.  broken  although  there  is  not  a  techni- 
Maitland,  11  Q.  B.  D.  695;  Carr  v.  cal  physical  ouster.  Shriver  v.  Smith, 
Dooley,  119  Mass.  294;  Linton  v.  Allen,  100  N.  Y.  471,  477.  See  4  Kent's  Com. 
154   Mass.  432;   Montgomery  v.   Reed.  (14th  ed.)  471. 


39°  STATUTES   OF   LIMITATION.  [CHAP.   XIV. 

veyed   to    Jameson,  and   afterwards   to   the   plaintiff,   the   mines 

premises.  Of  the  first  kind  is  a  recovery  by  ejectment  by  a  person  having  a 
lawful  title,  or  any  other  suit  by  which  the  peaceable  occupation  of  the  prem- 
ises is  prevented,  Thus,  a  covenant  in  a  lease  that  the  lessee  should  quietly 
enjoy  the  estate  discharged  from  taxes  is  broken  by  a  suit  for  them,  although 
commenced  after  the  expiration  of  the  term.  Laming  v.  Laming,  Cro.  Eliz. 
510.  But  where  the  breach  assigned  w^s,  "  that  the  defendant  had  exhibited  a 
bill  in  chancery  against  him  for  ploughing  meadow,  and  obtained  an  injunc- 
tion, which  had  been  dissolved  with  costs."  it  was  held  on  demurrer  to  be  no 
breach  of  covenant;  for  the  covenant  was  for  quiet  enjoyment,  and  this  was 
a  suit  for  waste.  Morgan  v.  Hunt,  2  Vent.  215.  But  a  suit  in  equity  that 
involves  the  title  and  estate  operates  as  a  breach.  Coulston  v.  Carr,  Cro.  Eliz. 
847:  Lanning  v.  Lovering,  id.  916;  Morgan  v.  Hunt,  2  Vent.  213;  Dovvdenay  v. 
OUnd,  Cro.  Eliz.  768;  Ashton  v.  Martyn,  2  Keb.  268.  So  does  a  recovery  in 
ejectment.  Coble  v.  Wellborn,  2  Dev.  (N.  C.)  L.  388;  Mitchell  v.  Warner,  5 
Conn.  522.  But  contra,  and  holding  that  it  does  not  constitute  a  breach, 
see  Kerr  v.  Shaw,  13  Johns.  (N.  Y.)  236.  Or  in  trespass  where  the  title 
is  involved.  Coble  v.  Wellborn,  supra.  But  contra,  see  Webb  v.  Alex- 
ander, 7  Wend.  (N.  Y.)  281.  But  the  language  of  the  covenant  must  be 
looked  to,  and  it  may  be  such  that  a  mere  judgment  in  an  action  involving 
the  title  will  not  operate  as  a  breach.  Thus,  if  the  covenant  is  that  "  the  lessee 
shall  enjoy  the  premises  without  lawful  eviction  "  (Anonymous,  3  Leon,  71,  pi. 
100),  it  has  been  held  that  a  bill  in  equity  involving  the  title,  brought  against 
the  lessor  alone,  does  not  operate  as  a  breach.  See  also  Selby  v.  Chute,  1  Rol. 
Ab.  430,  pi.  15.  The  covenant  may  be  either  general  or  qualified;  but  in  either 
case  it  runs  with  the  land.  Campbell  v.  Lewis,  8  Taunt.  715;  Noke  v.  Awder, 
Cro.  Eliz.  373.  Even  though  the  language  of  the  covenants  is  that,  "  subject 
to  the  payment  of  the  rent  and  the  performance  of  the  covenants."  the  lessee 
shall  quietly  enjoy,  yet  such  words  do  not  constitute  a  condition  precedent,  and 
a  recovery  may  be  had  by  the  lessee  for  a  breach  of  the  covenant,  although 
he  has  not  paid  the  rent  or  performed  his  covenants.  Dawson  v.  Dyer,  5  B.  & 
Ad.  584;  Allen  v.  Babbington.  1  Sid.  280;  Hayes  v.  Bickerstaff,  2  Mod.  34; 
Anonymous,  2  Show.  202;  Wakeman  v.  Waker,  1  Vent,  294.  Any  description  of 
annoyance  to  the  occupation  of  the  premises  which  prevents  the  lessee  from 
enjoying  his  property  in  so  ample  a  manner  as  he  is  entitled  to  do  by  the  terms 
of  the  lease,  amounts  to  a  breach  of  the  covenant  for  quiet  enjoyment  of  the 
second  sort.  Thus,  if  a  man  covenants  that  he  will  not  interrupt  the  cove- 
nantee in  the  enjoyment  of  premises,  the  erection  of  a  gate  which  intercepts 
them  is  a  breach  of  the  covenant,  although  he  had  a  right  to  erect  it.  Andrews 
v.  Paradise,  8  Mod.  318.  A  mere  demand  of  rent  by  a  person  having  a  superior 
title  does  not  amount  to  a  breach,  nor  does  any  act  of  the  lessor  that  merely 
amounts  to  a  trespass.  There  must  be  either  an  actual  or  constructive  eviction. 
Cowan  v.  Silliman,  4  Dev.  (N.  C.)  L.  46;  Mayor  v.  Mabie,  13  N.  Y.  151;  Vatel  v. 
•Ir-rnrr,  1  Hilt.  (N.  Y.  C.  P.)  149;  Lounsbery  v.  Snyder,  31  N.  Y.  514.  Nor  does 
an  unlawful  act  of  another  disturbing  the  tenant's  possession  amount  to  a 
bre  ich.  There  must  be  a  rightful  interruption  by  a  paramount  title.  Rantin 
RobertBon,  2  Strobh.  (S.  C.)  366.  But  there  may  be  an  eviction  and  a  conse- 
1  breach  without  a  judgment.  Coble  v.  Wellborn,  2  Dev.  (N.  C)  L.  388; 
Stewart  v,  Drake,  9  N.  J.  I.    139;  Grist  v.  Hodges,  3  Dev.  (N.  C.)  L.  198.     Such 


§   173- J  SPECIALTIES.  391 

under  the  land,  as  well  as  the  surfa'ce,  the  covenant  of  the  defend- 

a  covenant  may  be  said  to  be  broken  whenever  there  has  been  an  involuntary 
loss  of  possession  by  the  hostile  assertion  of  an  irresistible  title,  whether  with 
or  without  judgment,  or  whether  an  actual  dispossession  has  transpired  or  not. 
It  is  enough  if  the  title  is  paramount,  and  is  asserted  so  that  the  tenant  must 
either  quit  possession  or  yield  to  it.  McGary  v.  Hastings,  39  Cal.  360.  So  if, 
after  a  demise  of  mines  containing  the  usual  covenant  for  quiet  enjoyment,  the 
lessor  digs  a  quarry  over  the  mines,  and  makes  holes,  through  which  waLer 
percolates  and  escapes  into  the  mines,  although  he  had  a  legal  right  to  work 
the  quarry,  his  doing  so  in  such  a  manner  amounts  to  a  breach  of  the  covenant 
for  quiet  enjoyment  of  the  mines.  Shaw  v.  Stenton,  2  H.  &  N.  858.  An  action 
on  the  covenant  for  quiet  enjoyment  may  be  maintained  for  the  disturbance 
of  a  way  of  necessity,  Morris  v.  Edgington,  3  Taunt.  24;  or  of  a  way  by  grant 
from  the  covenantor,  Pomfret  v.  Ricroft,  1  Saund.  322.  It  must  be  remembered, 
however,  that  the  act  done  must  be  in  the  assertion  of  title,  and  not  a  mere 
tortious  act  for  which  an  action  of  trespass  might  be  maintained.  Sedden  v. 
Senate,  13  East.  72.  A  covenant  for  quiet  enjoyment  does  not  oblige  the  lessor 
to  rebuild  or  repair,  in  case  the  buildings  are  destroyed  or  injured  by  fire, 
tempest,  or  otherwise,  as  there  is  no  implied  obligation  upon  a  landlord  to  keep 
the  premises  tenantable.  Brown  v.  Quiller,  Ambler,  620.  The  covenant  only 
extends  to  lawful  interruptions,  whether  the  word  "  lawful  "  is  used  in  the 
covenant  or  not.  Foster  v.  Pierson,  4  T.  R.  617;  Dudley  v.  Folliot,  3  id.  584; 
Major  v.  Grigg,  2  Mod.  213.  And  an  allegation  of  a  breach  that  does  not  show 
an  interruption  by  title  is  bad.  Rantin  v.  Robertson,  2  Strobh.  (S.  C.)  366; 
Mayor  v.  Mabie,  13  N.  Y.  151;  Perry  v.  Edwards,  1  Strange,  400;  Nicholas  v. 
Pullin,  1  Lev.  83;  Holmes  v.  Seller,  3  id.  305;  Bailey  v.  Hughes,  W.  Jo.  242; 
Hamond  v.  Dod,  Cro.  Car.  5;  Anonymous,  Lofft,  460;  Chanudflower  v.  Prestley, 
Yelv.  30.  General  covenants  for  quiet  enjoyment  are  not  broken  bv  a  tortious 
eviction,  but  by  an  eviction  by  title  only.  Hayes  v  Bickerstaff,  Vaughan,  118; 
Hunt  v.  Allen,  Winch.  25;  Tisdale  v.  Essex,  Hob.  35.  And,  in  an  action  for  a 
breach  of  such  a  covenant,  the  p  laintiffs  declaration  must  set  up  an  eviction 
by  title  paramount.  Walton  v.  Hele,  2  Saund.  177;  Lanning  v«  Lovering,  Cro. 
Eliz.  qi6;  Nokes'  Case,  4  Coke,  80  b;  Bloxam  v.  Walker,  Freem.  124;  Foster 
v.  Mapes,  Cro.  Eliz.  212;  Brocking  v.  Cham,  Cro.  Jac.  425;  Hamond  v.  Dod, 
Cro.  Car.  5;  Cowper  v.  Pollard,  W.  Jo.  197. 

But  a  disturbance  of  the  lessee  by  the  lessor  himself  is  not  regarded  with  the 
same  lenity  as  an  eviction  by  a  stranger;  it  being  clear  that  the  lessor  exposes 
himself  to  an  action  on  his  covenant,  although  he  enters  wrongfully,  notwith- 
standing the  covenant  provides  against  lawful  evictions  only.     Corus  v. , 

Cro.  Eliz.  544;  Andrew's  Case,  id.  214;  Penning  v.  Plat,  Cro.  Jac.  383;  Pem- 
berton  v.  Piatt,  1  Rol.  267;  Cave  v.  Brookesby,  W.  Jo.  360;  Crosse  v.  Young,  2 
Show.  425;  Lloyd  v.  lomkies,  1  T.  R.  671.  And  see  Seaman  v.  Browning,  1 
Leon.  157.  For,  in  such  a  case,  the  court  will  not  consider  the  word  "  lawful;" 
nor  drive  the  plaintiff  to  his  action  of  trespass,  when  by  the  general  implied 
covenant  in  law  the  lessor  has  engaged  not  to  avoid  his  own  deed,  either  by  a 
rightful  or  tortious  entry.  Crosse  v.  Young,  supra;  Lloyd  v.  Tompkies,  supra. 
Indeed,  it  would  hardly  be  consistent  with  reason  to  allow  the  lessor  to  defeat 
the  tenancy  by  pleading  his  own  wrong. 

So,  if  a  lessor  covenants  for  quiet  enjoyment  against  himself  and  his  execu- 


392  STATUTES   OF   LIMITATION.  [CHAP.    XIV. 

ant  was  that  he  had  good  title*  to  the  mines.      That  covenant,  I 

tors,  the  lessee,  on  eviction  by  the  executor  need  not  show  that  the  executor 
entered  by  title,  any  more  than  in  the  case  of  the  lessor  himself.  Forte  v. 
Vine,  2  Rol.  21;   Ratcliff  v. ,  1  Bl.  &  Gold.  80. 

To  support  an  action  against  the  lessor,  it  is  not  necessary  that  he  should 
have  a  title  to  enter;  it  is  sufficient  if  he  enters  under  a  claim  of  one.  Lloyd  v. 
Tomkies.  1  T.  R.  671.  And  in  the  case  just  cited,  where  a  vendor  prevented  a 
pur,  naser  from  enjoying  a  new  appurtenance  to  the  house  sold,  by  locking  it 
up  against  the  purchaser's  will,  the  court  held  that  this  was  such  an  assertion 
of  right  as  to  render  the  lessor  liable  to  an  action.  The  covenant  goes  to  the 
possession, and  not  to  the  title,  and  is  not  broken  by  a  failure  of  the  lessor's  title 
merely.  Parker  v.  Dunn,  2  Jones  (N.  C.)  L.  203;  Waldron  v.  M'Carty,  3  Johns. 
(N.  Y.)  471;  Howard  v.  Doolittle,  3  Duer  (N.  Y.)  464;  Whitbeck  v.  Cook,  15 
Johns.  (N.  Y.)  483;  Boothby  v.  Hathaway,  20  Me.  251;  Webb  p.  Alexander,  7 
Wend.  (N.  Y.)  281;  Kortz  v.  Carpenter,  5  Johns.  (N.  Y.)  120;  Van  Slyck  v.  Kim- 
ball, 8  id.  198;  Grist  v.  Hodges,  3  Dev.  (N.  C.)  L.  198;  Coble  v.  Wellborn,  2  id. 
388.  And  it  has  been  held  that  a  mere  recovery  in  ejectment  does  not  have 
that  effect.  Kerr  v.  Shaw,  13  Johns.  (N.  Y.)  236.  Or  in  trespass  as  a  person 
claiming  title  to  the  land.  Webb  v.  Alexander,  supra.  But  the  better  rule  would 
seem  to  be  that  a  recovery  against  the  lessor  in  any  action  either  at  law  or  in 
equity  involving  his  title  or  estate,  and  affecting  his  immediate  right  of  pos- 
session, operates  as  a  breach  of  the  ordinary  covenant  for  quiet  enjoyment. 
Martin  v.  Martin,  1  Dev.  (N.  C.)  L.  413;  2  Piatt  on  Leases,  289,  and  cases  cited. 
But  in  order  to  constitute  a  breach  there  must  be  a  union  of  acts  of  disturb- 
ance and  title,  and  a  disturbance  by  a  mere  intruder  does  not  create  a  breach. 
Hoppes  v.  Cheek,  21  At k.  585;  Rantin  v.  Robertson,  2  Strobh.  (S.  C.)  366.  And 
the  eviction  and  disturbance  must  be  under  rights  or  a  title  existing  at  the  time 
when  the  lease  was  made,  and  not  under  rights  subsequently  acquired.  Ellis 
v.  Welch,  6  Mass.  246.  The  rule  is,  as  expressed  in  Knapp  v.  Marlboro.  34  Vt. 
235,  that,  to  sustain  an  action  for  the  breach  of  a  covenant  for  quiet  enjoyment, 
it  is  necessary  for  the  plaintiff  to  prove  that  he  was  evicted  by  a  person  who 
had  a  lawful  and  paramount  title,  existing  before  or  at  the  time  when  the  cove- 
nant was  entered  into,  as  the  covenant  relates  only  to  the  acts  of  those  claiming 
ti tie  and  to  rights  existing  at  the  time  it  was  entered  into.  See  also  Grist  v. 
Hodges,  3  Dev.  (N.  C.)  L.  198.  A  mere  demand  of  possession  by  a  person  hav- 
ing title  does  not  operate  as  a  breach  of  this  covenant.  Cowan  v.  Silliman,  4 
id.  46.  Nor  does  an  eviction  from  a  part  of  the  premises  under  a  statute,  or 
municipal  authority.     Frost  v.  Earnest,  4  Whart.  (Penn.)  86. 

An  accidental  trespass  on  the  premises  in  hunting.  Seddon  v.  Senate,  13  East, 
72.  or  an  entry  for  the  purpose  of  beating  the  lessee,  would  not  have  that  effect. 
Penn.  v.  Glover,  Cro.  Eliz.  421.  If  the  lessor  covenants  for  quiet  enjoyment 
against  the  acts  of  a  person  particularly  specified,  a  disturbance  by  that  person 
will  amount  to  a  breach,  whether  it  is  a  rightful  or  tortious  disturbance.  Fos- 
!•  1  .  Mapes,  Cro.  Eliz.  212;  Tisdale  v.  Essex,  Hob.  35;  Hill  v.  Browne,  Freem. 
112;  Perry  v.  Edwards,  1  Stra.  400;  Nash  v.  Palmer,  5  M.  &  S.  374;  Fowle  v. 
Welsh,  1  B.  &  C.  29.  But  see  Hayes  v.  Bickerstaff,  Vaugh.  118.  So,  where 
one  covenanted  for  quiet  enjoyment  without  interruption  by  any  person  "  hav- 
ing  or  claiming,  or  pretending  to  have  or  claim,"  any  right  of  common,  and  a 
bre  ich  was  assigned,  alleging  an   interruption  by  one  J.  B.,  who  claimed  com- 


§   1 73-]  SPECIALTIES.  393 

think,  was  broken  as  soon  as  it  was  made,  by  reason  of  his  hav- 

mon,  etc.,  it  was  held  that  the  plaintiff  need  not  show  any  title  in  J.  B. ;  for  the 
covenant  expressly  extended  not  only  to  those  who  had  right,  but  to  those  who 
claimed  or  pretended  to  a  right;  and,  therefore,  whether  the  claim  were  rightful 
or  groundless,  the  covenantor  was  liable.  Southgate  v.  Chaplin,  10  Mod.  383; 
Perry  v.  Edwards,  Stra.  400. 

If  a  general  covenant  for  quiet  enjoyment  contains  an  exception  of  particular 
persons,  the  exception  will  be  construed  strictly,  so  as  not  to  include  any  others 
than  those  expressly  named.  Woodroff  v.  Greenwood,  Cro.  Eliz.  51S.  A 
covenant  for  the  quiet  enjoyment  of  certain  premises  demised,  excepting  from  , 
the  demise  to  one  E.  K.  a  certain  close,  parcel  thereof,  does  not  amount  to  a 
covenant  for  quiet  enjoyment  against  an  interruption  by  E.  K.  as  to  the  lands 
actually  comprised  in  the  lease.     Ibid;   Rashleigh  v.  Williams,  2  Vent.  61. 

In  assigning  a  breach  of  a  covenant  for  quiet  enjoyment,  where  the  interrup- 
tion is  the  act  of  a  third  party,  against  whom  the  covenant  has  not  specifically 
provided,  it  is  not  sufficient  to  allege  that  having  lawful  right  and  title  he 
entered,  without  alleging  also  that  he  had  such  lawful  title  before  or  at  the 
lime  of  the  date  of  the  lease  to  the  plaintiff;  for  possibly  he  might  have  derived 
title  from  the  plaintiff  himself.  Kirby  v.  Hanksaker,  Cro.  Jac.  315;  Woolen  v. 
Hele,  2  Saund.  177;  Proctor  v.  Newton,  1  Vent.  184;  Norman  n.  Foster,  1  Mod. 
101;  Forte  v.  Vine,  2  Rol.  21;  Skinner  v.  Kilbys,  1  Show.  70;  Anon.,  2  Vent. 
46;  Rashleigh  v.  Williams,  2  Vent.  6r;  Buckley  v.  Williams,  3  Lev.  325;  Jordan 
v.  Twells,  Ca.  temp.  Hard.  171 ;  Fosters.  Pierson,  4  T.  R.  617  Hodgson  v.  East 
India  Co.,  8  T.  R.  278;  Campbell  v.  Lewis,  3  B.  &  Aid.  392.  And  see  Noble 
v.  King,  1  H.  Bl.  34;  Brookes  v.  Humphreys,  5  Bing.  N.  C.  55;  Fraser  v.  Skey, 
2  Chit.  O46.  It  is  not  necessary,  however,  for  the  declaration  to  show  what  title 
he  had.  A  different  rule  would  impose  insuperable  difficulties  on  the  plaintiff, 
a  knowledge  of  the  title  being  only  to  be  acquired  by  inspection  of  the  deeds, 
to  which  he  could  not  have  access.  Proctor  v.  Newton,  supra;  Foster  v.  Pier- 
son,  supra;   Hodgson  v.  East  India  Co.,  supra.     But  where  the  interruption  is 

by  the  lessor  himself,  Corus  v. ,  Cro.    Eliz.    544,    or   by   a   person  against 

whose  acts  the  covenant  has  specially  provided,  it  is  sufficient  to  allege  an  entry 
by  him,  without  stating  under  what  title  or  pretense,  or  whether  by  right  or 
wrong,  Foster  v.  Mapes,  supra.  Some  particular  act,  however,  by  which  the 
plaintiff  is  interrupted  must  be  shown,  otherwise  the  breach  will  not  be  well 
assigned.  Anon,,  Com.  228.  In  an  action  on  a  covenant  that  the  lessor  is 
seised  in  fee,  a  breach  may  be  assigned  in  terms  as  general  as  the  covenant, 
viz.,  that  he  was  not  seised  in  fee,  without  showing  that  another  was  so  seised, 
nor  why  the  defendant  was  not  so  seised.  Muscot  v.  Ballet,  Cro.  Jac.  369; 
Glinister  v.  Audley,  T.  Raym.  14;  Glimston  v.  Audly,  1  Keb.  58.  So,  on  a 
covenant  that  the  lessor  has  good  right  to  demise,  the  lessee  may  assign  as  a 
breach  that  he  had  not  good  right,  without  showing  in  whom  the  right  was 
vested.  Bradshaw's  Case,  9  Coke,  60  b;  Salman  v.  Bradshavv,  Cro.  Jac.  304; 
Lancashire  v.  Glover,  2  Show.  460. 

In  an  action  on  a  covenant  for  quiet  enjoyment,  an  allegation,  as  a  breach, 
that  the  plaintiff  (lessee)  entered  and  was  evicted  by  the  defendant  (lessor),  is 
not  supported  by  proof  that  he  made  a  demand  of  possession  and  was  refused, 
an  expulsion,  which  is  a  putting  out,  not  having  taken  place;  for  a  party  who 
comes  to  claim,  but  has  never  entered,  cannot  be  expelled.     The  breach  is  not 


394  STATUTES   OF   LIMITATION.  [CHAP.   XIV. 

ing  before  become  party  to  a  lease  of  the  mines,  which  lease  was 

for  expelling,  but  for  not  letting  in.  Havvkes  v.  Orton,  5  Ad.  &  El.  367; 
Warn  v.  Bickford,  9  Price,  43.  The  ordinary  covenant,  by  the  lessor,  for  quiet 
enjoyment  as  against  any  person  claiming  by,  from,  or  under  him,  is  broken 
by  an  eviction  of  the  tenant  by  the  lessor's  widow  entitled  under  a  conveyance 
taken  by  the  lessor  to  the  use  of  himself  and  his  wife.  Butler  v.  Swinnerton, 
Cro.  Jac.  657.  Also,  by  an  eviction  by  a  person  claiming  under  a  prior  appoint- 
ment by  the  covenantor  and  anolher  person.  Calvert  v.  Sebright,  15  Beav.  156. 
As  to  what  constitutes  an  eviction,  see  chapter  on  Eviction,  post.  But  a  dis- 
tress for  arrears  of  land-tax  due  from  the  lessor  at  the  time  of  the  demise  will 
not  operate  as  a  breach.  Stanley  v.  Hayes,  3  Q.  B.  105.  The  lessee  of  a  house 
and  garden,  forming  part  of  a  large  area  of  building  ground,  is  not  entitled 
under  this  covenant  to  restrain  the  lessor  or  persons  claiming  under  him  from 
building  on  the  adjoining  land  so  as  to  obstruct  the  free  access  of  light  and  air 
to  the  garden.  Potts  v.  Smith,  L.  R.  6  Eq.  311.  When  contained  in  a  lease  of 
the  exclusive  right  of  shooting  and  sporting  over  a  farm,  this  covenant  does 
not  hinder  the  tenant  of  the  farm  from  using  the  land  in  the  ordinary  way,  or 
from  destroying  furze  and  underwood  in  the  reasonable  use  of  the  land  as  a 
farm;  and  the  lessor  will  not  be  liable  for  wrongful  acts  committed  by  such 
tenant  contrary  to  the  reservation  of  his  landlord.  Jeffryes  v.  Evans,  19  C.  B. 
N.  S.  246.  See  Newton  v.  Wilmot,  8  M.  &  W.  711.  Under  a  covenant  in  the 
form  above  menlioned  contained  in  a  lease  of  a  stream  of  water  excepting  so 
much  as  should  be  sufficient  for  the  supply  of  persons  with  whom  the  lessor 
should  have  already  contracted,  diversions  occasioned  by  contracts  made  pre- 
viously to  the  demise  will  not  constitute  breaches.  Blatchford  v.  Plymouth,  3 
Bing.  N.  C.  691.  Where  the  covenant  provides  that  the  lessee  shall  quietly 
hold  and  enjoy  the  premises  for  and  during  the  said  term,  the  last  words  must 
be  taken  to  refer  to  the  term  which  the  lessor  assumed  to  grant  by  the  lease, 
and  not  to  the  term  which  he  had  actually  had  power  to  grant.  Evans  v. 
Vaughan,  4  B.  &  C.  261,  268. 

A  general  covenant  for  quiet  enjoymen  texlends  only  to  the  acts  of  persons 
claiming  uader  a  lawful  title.  Dudley  v.  Folliott,  3  T.  R.  584.  For  the  law 
will  never  adjudge  that  a  lessor  covenants  against  the  wrongful  acts  of  strang- 
ers, except  his  covenant  is  express  to  that  purpose.  Wotlon  v.  Hele,  2  Wins. 
Saund.  178,  note  (S).  The  construction,  however^  is  different  where  an  indi- 
vidual is  named;  for  there  the  covenantor  is  presumed  to  know  the  person 
ig-iinst  whose  acts  he  is  content  to  covenant,  and  may  therefore  reasonably  be 
expected  to  Gtipulate  against  any  disturbance  from  him,  whether  by  lawful  title 
or  otherwise.  L  >rd  Ellenborough,  C.  J..,  in  Nash  ?/.  Palmer,  5  M.  &  S.  387; 
Fowle  v.  Welsh,  1  B.  &  C.  29. 

Under  a  general  covenant  for  quiet  enjoyment  contained  in  the  lease  of  a  coal 
mine,  the  working  of  iron-stone  lying  between  the  surface  and  the  demised 
<  0  il  in  such  a  manner  as  to  interrupt  the  lessee  in  h'.s  occupation  of  the  mine, 
will  constitute  a  breach.     Shaw  v.  Stenton,  2  H.  &  N.  858. 

Under  a  covenant  by  the  lessor,  in   an  underlease,  that  the  lessee  shall  hold 

the  premises  without   any  lawful    eviction,  etc.,    by  the   lessor,  or   any  persons 

whomsoever  claiming  by,  from,  under  or  in  trust  f:>r  her,  or  by  or  through  her 

means,   right,  etc  ,   an    eviction   of   the  underlessee  by  the  original  lessor 

for  a   forfeiture   incurred    by  the    use   of   the    premises   as  a  shop,  contrary  to  a 


=$  1 73-]  specialties.  395 

then  in  force.1  It  was  a  covenant  running  with  the  land,  and  a 
continuing  covenant,  and  a  breach  of  it  by  means  of  the  lease 
was  a  continuing  breach,2  and  although  the  plaintiff  might  have 
sued  upon  it  upon  his  becoming  possessed,  and  might  have  recov- 
ered the  damages  he  had  sustained  (if  any)  by  reason  of  the 
breach,  he  was  not  bound  to  do  so;  and  I  am  of  opinion  that  he 
continued  entitled  to  sue  for  any  damage  afterwards  sustained 
whenever  any  such  should  have  resulted  from  the  breach ;  and, 
finally,  that  if  the  statute  of  limitations  apply  at  all  to  covenants 
for  title,  the  time  of  limitation  does  not  necessarily  begin  to  run 
from  the  making  of  the  covenant,  or  of  a  lease  which  is  a  breach 

covenant  in  the  original  lease,  of  which  the  underlessee  had  not  been  informed, 
is  not  an  eviction  by  means  of  the  lessor  within  the  meaning  of  the  covenant. 
Spencer  v.  Marriott,  I  B.  &  C.  457.  See  Woodhouse  v.  Jenkins,  9  Bing.  431. 
Under  a  covenant  that  the  tenant,  paying  the  rent  and  performing  the  cove 
nants,  shall  quietly  enjoy,  the  payment  of  rent  is  not  a  condition  precedent  to 
the  performance  of  the  covenant  for  quiet  enjoyment.  Dawson  v.  Dyer,  5  B. 
&  Ad.  584.  A  clause  in  a  deed,  whereby  the  lessor  "  for  himself,  his  heirs  and 
assigns,  the  premises  unto  the  lessee,  his  executors,  administrators,  and 
assigns,  under  the  rent,  covenants,  etc.,  before  expressed,  against  all  persons 
whatsoever  lawfully  claiming  the  same,  shall  and  will,  during  the  term,  war- 
rant and  defend,"  operates  as  an  express  covenant  for  quiet  enjoyment  during 
the  whole  term  granted  by  the  lease.      Williams  v.  Burrell.  1  C.  B.  402. 

1  Covenants  of  this  character  are  broken  by  the  existence  of  any  incum- 
brance upon  the  land  the  instant  the  deed  or  lease,  is  delivered.  Seitzinger  v. 
"Weaver,  1  Rawle  (Penn.)  377;  Knepper  v.  Kurtz,  58  Penn.  St.  480;  Bingham  v. 
Weiderwax,  1  N.  Y.  509;  Stewart  v.  Drake,  21  N.  J.  L.  139;  Hamilton  v.  Wilson, 
4  Johns.  (N.  Y.)  72;  M'Carty  v.  Leggett,  3  Hill  (N.  Y.)  134;  Mott  v.  Palmer,  1 
N.  Y.  564;  Chapman  v.  Holmes,  10  N.  J.  L.  20;  Garrison  v.  Sandford,  22  id. 
261.  But  if  a  covenant  of  seisin  is  qualified  by  subsequent  covenants  in  the 
deeds,  as  if  the  grantor  covenants  generally  that  he  is  well  seised,  etc.,  and 
warrants  the  premises  to  the  grantee,  etc.,  "  against  all  claims  and  demands 
except  the  lord  of  the  soil,"  both  covenants  must  be  construed  together,  and 
the  last  qualifies  the  first,  so  that  the  title  of  the  lord  of  the  soil  does  not  operate 
as  a  breach  of  the  first  covenant.      Cole  z>.  Hawes,  2  Johns.  Cas.  (N.  Y.)  203. 

2  But  it  is  generally  held  that  a  general  covenant  of  title  in  a  deed  does  not 
run  with  the  lands,  because,  being  broken  by  the  delivery  of  the  deed  or  lease 
in  which  it  is  contained,  it  is  instanter  converted  into  a  chose  in  action,  which 
is  not  assignable.  Blydenburgh  v.  Cotheal,  1  Duer  (N.  Y.)  176;  Harsha  v. 
Reid,  45  N.  Y.  415;  Mirick  v.  Bashford,  38  Barb.  (N.  Y.)  191;  Carter  z:  Denman. 
23  N.  J.  L.  260;  Lot  v.  Thomas,  2  id.  260.  But  such  a  covenant  in  a  lease 
stands  upon  a  different  footing.  In  Maine  bv  statute,  and  in  Missouri,  Dickson 
v.  Desire,  23  Mo.  151;  Indiana,  Martin  v.  Baker.  5  Blackf.  (Ind.)  232V,  and  in 
Ohio,  Devore  v.  Sunderland,  17  Ohio,  52,  such  covenants  are  treated  as  con- 
tinuous, fully  sustaining  the  doctrine  of  Kingdom  v.  Nottle,  1  M.  &  S.  355,  and 
4  id.  53- 


396  STATUTES   OF    LIMITATION.  ["CHAP.    XIV. 

of  the  covenant,  and  that  it  is  no  bar  as  long  as  the  lease  con- 
tinues, and  any  damage  nominal  or  substantial  is  or  may  be 
sustained.1  I  do  not  understand  it  to  be  questioned  that  the  con- 
veyances passed  the  mines  as  well  as  the  land  to  the  plaintiff,  nor 
that  a  covenant  for  title  runs  with  the  land,  nor  therefore  that 
the  plaintiff  is  entitled  to  the  benefit  of  this  covenant,  nor  that 
it  was  broken  by  the  making  of  the  lease.  And  I  am  of  opinion 
that  he  is  entitled  to  sue  upon  it  now,  upon  the  ground  that  the 
existence  of  the  lease,  until  it  expired  in  1865,  was  an  incum- 
brance upon  the  land,  and  rendered  it  of  less  value  than  if  it  had 
not  existed ;  and,  further,  that  it  made  the  entry  of  the  lessees 
lawful  and  so  enabled  them  to  take  the  fire-clay  from  the  mine; 
and,  although  they  themselves  and  not  the  defendant  are  liable 
to  the  plaintiff  for  the  value  of  the  fire-clay  taken,  it  is  a  damage 
to  the  plaintiff  that  he  is  put  to  his  action  against  them,  and  may 
incur  extra  costs  in  such  action  which  he  could  not  have  been 
exposed  to  but  for  the  right  of  entry  conferred  upon  them  by  the 
defendant.2  I  am  also  of  opinion  that  the  entry  into  the  mine, 
and  the  taking  the  fragments  of  coal  in  1848  by  virtue  of  the 
lease,  which  was  within  the  twenty  years,  was  a  breach  of  the 
covenant  for  quiet  enjoyment. 

"  The  case  of  Kingdon  v.  Nottle,3  upon  a  covenant  for  title,  and 
King  v.  Jones,4  upon  a  covenant  for  further  assuiance,  are 
authorities  to  show  that  these  covenants  are  continuing  covenants 
and  the  breaches  of  them  continuing  breaches,  and  that  a  right  of 

1  It  would  be  an  exceedingly  harsh  rule  that  wo.dd  compel  a  lenant,  who  is 
in  the  quiet  enjoyment  of  premises,  under  a  l^ase  for  a  long  term,  to  bring  an 
action  within  twenty  years,  or  any  shorter  term,  for  a  breach  of  such  a  cove- 
nant, where  his  damages  would  be  only  nominal,  and  thus  preclude  himself 
from  any  remedy,  if  by  an  actual  eviction,  at  a  Liter  period,  he  sustained  heavy 
damages;  and  that  the  courts  appear  to  be  inclined  latterly,  to  hold  that  this 
is  a  continuous  covenant,  and  runs  with  the  land.  S^-e  Martin  ?•.  Baker,  supra; 
Devore  v.  Sunderland,  su£raj  Dickson  v.  Desire,  supra;  Bennett  v.  Waller,  23 

IH.  <)7- 

5  A  covenant  against  incumbrances  is  continuous,  but  only  nominal  damage 

can  be  recovered  for  its  breach  until  the  covenantee  has  been  actually  damni- 

1  hereby.      Reading  v.  Gray,  5  J.   &  S.  (N.   Y.)  79;   Stanard  v.  Eldridge,  16 

Johns.  (N.  Y.)254;   De   Forest  v.   Lecte,    16  id.    122;    Hall   v.    Dean,    13  id.    105; 

Funk  v.  Voneida,  n   S.   &    R.  (Penn.)    109;  Cathcart   v.    Bowman,  5    Penn.  St. 

317.      • 

1   M.  .V  S.  355,  4  id,  53.     See  also  Backhouse  v.  Bonomi,  9  H.  L.  C.  503;  E. 
I',.  &  E,  654.      See   also  I'.ennctl  v.  Waller,  23  111.  93. 
4  5  Taunt.  418;   4    M.  &  S.  188. 


§  I73-]  specialties.  397 

action  accrues  toties  quoties  when  and  as  often  as  damage  actually 
arises  from  the  breach  of  either  covenant.1 

"  It  is  true  when  these  cases  were  decided  there  was  no  statute 
of  limitation  expressly  taking  away  the  right  to  sue  upon  a  cove- 
nant after  a  certain  number  of  years  from  the  breach.  But  the 
language  of  the  statute  is  that  no  action  shall  be  brought  but 
within  twenty  years  after  the  action  has  accrued  ;  and  we  have 
only  to  consider  the  real  nature  of  the  covenant  for  title,  and  of 
the  various  kinds  of  breaches  of  it,  which  may  be  committed,  to 
see  that  the  statute  of  limitations  is  wholly  inapplicable  to  such 
breaches,  except  where  the  right  of  action  is  upon  an  eviction  of 
the  whole  property  conveyed,  so  that  there  is  no  land  with  which 
the  covenant  may  run  and  nothing  left  upon  which  the  covenant 
can  operate.2  In  such  a  case  the  statute  may  apply,  and  from 
such  an  eviction  the  time  may  begin  to  run." 

1  Where  the  grantor  or  lessor  was  in  possession  at  the  time  the  instrument 
was  delivered,  and  the  grantee  or  lessee  enters  in  pursuance  of  the  deed  or 
lease,  the  covenant  for  title  runs  with  the  land,  and  the  grantor  or  lessor  is 
answerable  thereon  to  the  assignee  of  the  grantee  or  lessee.  Slater  v.  Rawson, 
6  Met.  (Mass.)  439.  The  same  rule  is  adopted  as  to  a  covenant  against  incum- 
brances where  it  existed  at  the  time  of  the  conveyance  and  continued  at  the 
time  of  the  assignment,  so  as  to  continually  enlarge  the  damages,  and  the 
assignee  is  entitled  to  sue  for  damages  subsequent  to  the  assignment.  Sprague 
v.  Baker,  17  Mass.  589.  But  where  the  grantor  or  lessor  is  not  in  possession, 
the  covenant  is  broken  at  once,  and  does  not  run  with  the  land.  Bartholomew 
v.  Candee,  14  Pick.  (Mass.)  167.  A  covenant  for  further  assurance  runs  with 
the  land.     Bennett  v.  Waller,  23  111.  93. 

2  The  covenant  being  continuous,  each  breach  constitutes  a  separate  cause  of 
action,  and,   if  within  the  statute,   it  should  apply  only  to  breaches  occurring 
more  than  the  statutory  period  before  action  brought;  but  the  great  majority  of 
cases  in  this  country  hold  that  the  covenant  of  seisin  does  not  run  with  the  land 
that  it  is  in prasenti,  and,  being  broken,  if  at  all,  when  the  deed  is  delivered 
the  claim  for  damages  thereby  becomes  personal  in  its  nature  to  the  grantee 
and  is  not  transferred  by  a  conveyance  to  a  subsequent  grantee.     But  in  Iowa 
where  deeds  have  been   reduced  to  forms  of   great  simplicity,  the  English  doc 
trine,  as  stated   in  the  text,  has  been  fully  adopted.     A  contrary  rule  operates 
oppressively  in  all  cases  where  the  land  has  been  conveyed  either  to  the  grantee 
or  subsequent  purchaser,  and  legislative  intervention  may  be  needed  to  correct 
the  evils  resulting  from  the  doctrine  so  generally  adopted  here.     The  purchaser, 
if  evicted,  should  receive  the   indemnity  of  the  covenant;   being  the  first  and 
only  sufferer  in  every  instance,  except  where  he  has  not  paid  for  the  land,  and 
for  the  grantee  under  the  deed,  who  has  sold  and  received  his  pay  for  the  land, 
to  recover  damages  under  this  covenant,  is  unjust.      If  there  is  a  covenant  of  war- 
ranty in  the  first  grantor's  deed,  then  he  is  liable  over  to  his  grantee  under  this 
covenant;  but  if  there  is  no  such  covenant,  then  a  party  who  has  no  interest 


398  STATUTES    OF    LIMITATION.  [CHAP.    XIV. 

Previously  to  this  statute,  as  before  stated,  a  specialty  debt 
was  presumed  to  have  been  paid  at  the  end  of  twenty  years. 
And  it  seems  that  even  in  England,  if  the  statute,  through  some 
defect  in  pleading,  cannot  be  taken  advantage  of,  yet  the  fact  of 
payment  may  still  be  presumed.1 

Sec.  174.  Covenants  of  Warranty,  against  Incumbrances,  &c. — 
Covenants  running  with  the  land  are  such  as  relate  to  and  con- 
cern the  land,  and  pass  with  it  where  there  is  a  privity  of  estate. 
Of  this  class  are  covenants  of  warranty,  which  are  in  effect  the 
same  as  those  for  quiet  enjoyment,  and  extend  to  the  possession 
as  well  as  the  title,  so  that  any  disturbance  of  the  free  and  unin- 
terrupted use  of  the  premises  under  a  superior  right,  even  without 
an  actual  expulsion  therefrom,  is  in  law  an  eviction  and  a  breach 
of  the  covenant.2  There  can  be  no  breach  of  this  covenant  until 
there  is  an  actual  eviction  either  from  the  whole  or  some  part  of 
the  premises,3  and  the  eviction  must  be  stated  in  the  declaration.4 

can  recover  damages  where  he  has  sustained  none.  Schofield  v.  Iowa  Home- 
stead Co.,  32  Iowa,  317.  In  such  a  case  the  rule  of  damages  being  usually  the 
consideration  money  and  interest  (Vail  v.  Junction  R.  R.  Co.,  1  Cine.  (Ohio) 
317),  a  party  can  profit  at  the  expense  of  others  by  a  rule  of  law  lhal  is  both 
unwise  and  unjust.  Richard  v.  Bent,  59  111.  3S.  In  Indiana,  Massachusetts, 
Soulh  Carolina,  Ohio,  and  Missouri,  the  courts  have  applied  the  doctrine  stated 
in  the  text.  Martin  v.  Baker,  5  Blackf.  (Ind.)  282;  Devore  v.  Sunderland,  17 
Ohio,  52;  Dickson  v.  Desire,  23  Mo.  151;  M'Crady  v.  Brisbane,  1  Nott  & 
McCord  (S.  C.)  104. 

1  Best  on  Presumptions,  18S.  The  rule  as  to  mortgages  is,  that,  where  the 
mortgagee  has  never  enlered  under  the  mortgage,  and  there  has  been  no  pay- 
ment of  interest,  nor  demand  thereof,  nor  any  admission  of  the  mortgagee  as  a 
subsisting  lien,  within  twenty  years,  the  mortgage  is  presumed  satisfied.  Dun- 
ham v.  Minard,  4  Paige  (N.  Y.)  441;  Blethen  v.  Dwinal,  35  Me.  556;  Chick  v. 
Rollins,  44  Me.  104;  Boyd  v.  Haaris,  2  Md.  Ch.  210;  Cheever  v.  Perley,  11  Allen 
(Mass.)  584;  Wanmaker  v.  Van  Buskirk,  1  NT.  J.  Eq.  685;  Evans  v.  Huffman, 
5  id-  354;  Collins  v.  Torry,  7  Johns.  (N.  Y.)  278;  Jackson  v.  Hudson,  3  id.  375; 
Giles  ?'.  Baremore,  5  Johns.  (M.  Y.)  Ch.  545.  See  also  Jackson  v.  Pratt,  10 
Johns.  (N.  Y.)  381;  Jackson  v.  Delancey,  11  id.  365;  Belmont  v.  O'Brien,  12  N. 
Y.  394.  The  same  rule  applies  to  all  sealed  instruments  for  the  payment  of 
money.  A  mortgage,  if  satisfied  in  equity,  may  be  presumed  satisfied  at  law, 
ordered  to  be  canceled.     Kellogg  v.  Wood,  4  Paige  (N.  Y.)  578. 

»  Rea  v.  Minkler,  5  Lans.  (N.  Y.)  196;  Withy  v.  Mumford,  5  Cow.  (N.  Y.)  137; 
Suydam  v.  Jones,  10  Wend.  (N.  Y.)  180. 

3  Cowdrey  v.  Coit,  44  N.  Y.  382;  Kent  v.  Welch,  7  Johns.  (N.  Y.)  258;  Knep- 
per  v.  Kurtz,  58  Penn.  St.  480;  Patton  v.  McFarlane,  3  P.  &  W.  (Penn.)  419; 
Flowers  v.  Foreman,  23  How.  (U.  S.)  132. 

4  Clarke  v.  M'Anulty,  3  S.  &  R.  (Penn.)  364;  Paul  v.  Witman,  3  W.  &  S. 
(Penn.)  407   West  v.  Stewart,  7  Penn.  St.  122. 


§    1 75- J  SPECIALTIES.  39<j 

Consequently  neither  the  statute,  the  common  law,  nor  statutory 
presumption  attaches  to  actions  upon  this  covenant  until  the 
grantee  or  lessee  is  evicted  from  some  part  of  the  premises.  But 
covenants  against  incumbrances  are  said  to  be  broken  as  soon  as 
the  deed  is  delivered,  if  the  grantor  or  his  predecessors  in  the 
title  had  previously  mortgaged  or  incumbered  the  same,1  and, 
although  the  mortgage  is  not  due,  nominal  damages  are  recover- 
able ; 2  but,  according  to  the  English  doctrine  and  some  American 
cases,  the  grantee  may  wait  until  the  mortgage  becomes  due,  and 
neither  the  statute  nor  the  presumption  from  lapse  of  time  will 
attach  to  the  covenant  for  actual  damages  until  that  time.3  But 
little  difficulty  will  be  experienced  in  determining  when  the  stat- 
ute begins  to  run  upon  or  the  presumption  attaches  to  a  cove- 
nant, because  in  all  cases  it  begins  to  run  from  the  time  of  a 
breach  thereof;  and  it  is  only  necessary  to  ascertain  at  what  time 
an  action  could  first  have  been  maintained  thereon,  to  determine 
the  period  from  which  the  running  of  the  statute  began. 

Enough  has  already  been  stated  to  show  the  distinction 
between  continuous  covenants  and  those  which  are  exhausted 
by  a  single  breach ;  and  this  distinction  is  important  and  should 
not  be  lost  sight  of. 

Sec.  175.  Bonds.  —  Upon  bonds,  the  statute,  in  those  States 
where  this  class  of  obligations  is  within  it,  does  not  begin  to  run 
until  there  is  a  breach  of  condition;  and  if  there  are  several  dis- 
tinct conditions,  it  only  begins  to  run  upon  each  condition  from 
the  time  each  was  broken ; 4  and  the  same  rule  prevails  as  to 
sureties  and  principals  therein.5  Upon  an  indemnity  bond  the 
statute  does  not  begin  to  run  until  the  party  to  whom  it  was 
given  has  been  damnified ;  and  it  is  doubtful  whether  the  mere 
fact  that  a  judgment  has  been  obtained  against  him  is  sufficient 
to  put  the  statute  in  motion.  The  fact  that  he  has  become  liable 
to  pay,  without  payment  in  fact,  is  not  believed  to  be  sufficient.6 

1  Cathcart  v.  Bowman,  5  Penn.  St.  317. 
s  Funk  v.  Voneida,  11  S.  &  R.  (Penn.)  109. 

3  This  rule  is  fully  adopted  in  Richard  v.  Bent,  59  111.  38.  The  justice  and 
reason  of  this  doctrine  are  incontrovertible;  but  in  a  great  majority  of  the 
States  a  contrary  doctiine  is  held,  and  the  statute  attaches  to  this  covenant  as 
soon  as  the  deed  is  delivered.     Chapman  v.  Kimball,  7  Neb.  399. 

4  Salisbury  v.  Black,  6H.&  J.  (Md.)293.     See  McKim  v.  Glover,  161  Mass.  418. 

5  Thurston  v.  Blackiston,  36  Md.  501. 

*  lilies  v.  Fitzgerald,  n  Tex.  417.     In   Hall  v.  Creswell,  12  G.  &  J.  (Md.)  36, 


400  STATUTES    OF   LIMITATION.  [CHAP.    KIV. 

In  an  English  case.1  where  the  plaintiff's  declaration  was  framed 
upon  a  bond  not  setting  out  a  condition,  and  the  defendant 
pleaded  that  the  cause  of  action  did  not  accrue  within  twenty 
years,  and  issue  was  joined  thereon,  and  it  appeared  at  the  trial 
that  the  bond  had  been  executed  more  than  twenty  years  before 
the  action  was  brought,  but  that  it  was  a  post-obit  bond  for  the 
payment  of  a  sum  of  money  after  the  death  of  a  person  who  was 
proved  to  have  died  within  twenty  years,  it  was  held  that  the 
statute  did  not  begin  to  run  until  the  death  of  such  person,  and 
consequently  that  the  action  was  seasonably  brought.  Where 
acts  are,  by  the  terms  of  a  bond,  to  be  done  successively  in  a 
series  of  years,  a  new  cause  of  action  arises  from  each  omission 
to  do  the  act  at  the  proper  time;  and,  if  the  plaintiff  can  show 
any  breach  within  the  statutory  period,  he  is  entitled  to  recover 
for  that.2  If  a  bond  is  given,  conditioned  for  the  faithful  dis- 
charge of  the  duties  of  a  certain  office,  the  statute  begins  to  run 
in  favor  of  the  surety  thereon  from  the  time  of  an  actual  breach. 
Thus,  where  an  action  was  brought  upon  a  bond  given  by  a 
commissioner  to  sell  real  estate,  an  action  accrues  against  the 
surety  after  the  lapse  of  a  reasonable  time  within  which  the  com- 
missioner neglects  to  pay  over  the  money,  and  from  that  time 
the  statute  begins  to  run  in  the  surety's  favor.3 

If  no  time  is  fixed  within  which  the  condition  of  a  bond  is  to 
be  performed,  but  it  is  left  contingent  upon  the  happening  of  a 
certain  event,  the  statute  does  not  attach  thereto  until  such 
event  transpires.4 

Where,  however,  no  time  for  performance  is  specified,  and 
performance  is  not  dependent  upon  any  contingency,  a  right  of 
action  begins  to  run  within  a  reasonable  time.  Thus,  where  a 
bond  was  conditioned  to  pay  an  outstanding  mortgage  on  land 
bought  by  the  mortgagee,  and  no  time  within  which  payment 
should   be  made  was  fixed   in  the  bond,  it  was  held  that  a  right 

ii  was  held  that  the  right  of  action  accrued  from  the  time  of  payment,  and  con- 
sequently  thai  the  statute  then  began  to  run. 
1  Sanders  v.  Coward,  15   M.  &  W.  5G. 

'-'   Blair  v.  Ormond,  20  L.  J.  Q.  B.  452;  Amott  v.  Holden,  22  id.  19.     In  Keefer 
Zimmerman,  22  Md.  274,  it  was  held   no  defense  to  an  action  for  the  breach 
of  a   covenant  that  there  has  been   a   previous  breach   upon  which  the  statute 
has  run. 

-  .  State,  25  Ind.  107. 
ireet  v.  Irish,  36  Barb.  (N.  Y.)  467. 


§   1 75-]  SPECIALTIES.  4OI 

of  action  accrued  and  that  the  statute  began  to  run  at  the  end  of 
a  reasonable  time  after  the  mortgagee  would  be  obliged  to  receive 
the  money.1  But  in  such  a  case  it  seems  that  the  right  of  the 
mortgagor  to  pay  and  of  the  mortgagee  to  sue  for  the  money 
arose  at  once,  and  there  seems  to  be  no  reason  why  the  rights  of 
either  party  should  be  subjected  to  any  such  uncertainty  as  the 
rule  last  stated  entails  upon  them;  and  in  a  case  where  a  mort- 
gage was  executed,  and  fixed  no  time  for  redemption,  it  was  held 
that  the  right  to  redeem  attached  at  once,  and  the  statute  began 
to  run  from  the  execution  of  the  mortgage.2  Where  a  covenant 
fixed  no  time  for  payment,  but  provided  for  a  reference  to  arbi- 
tration in  case  of  any  disagreement  as  to  the  amount  to  be  paid, 
it  was  held  that  the  statute  attached  to  the  demand  from  the 
date  of  the  covenant,  and  that  the  statute  of  limitations  did  not 
begin  to  run  until  after  the  demand  made  by  the  obligee's  execu- 
tors after  the  devisee's  death.  But  if  a  specific  time  for  per- 
formance is  named,  then  the  statute  attaches  at  that  time.3  In 
Maine,4  where  a  question  arose  in  an  action  upon  a  jail-bond, 
whether,  where  there  were  two  distinct  breaches  of  the  bond,  the 
statute  began  to  run  upon  the  first  breach,  so  as  to  bar  an  action 
upon  the  second ;  the  court  held  that  it  did,  because  the  amount 
recoverable  upon  the  first  breach  would  have  been  the  same  as 
for  both.  But  in  an  action  upon  a  bond  where  the  liability  is 
continuous,  and  arises  for  each  breach,  as  upon  a  bond  given  to 
a  sheriff  by  his  deputy,  conditioned  for  the  faithful  performance 
of  his  duties  as  such,  the  statute  only  runs  from  the  date  of  each 
breach,  and  a  recovery  may  be  had  as  to  breaches  not  barred, 
although  the  statute  has  run  as  to  others.5 

In  the  case  of  bonds  conditioned  for  the  conveyance  of  real 
estate,  or  title  bonds  as  they  are  called,  the  statute  does  not  begin 
to  run  against  a  suit  by  the  obligee  for  a  specific  performance 
until  a  demand  for  a  deed  and  a  refusal  by  the  obligor  or  some 
other  decisive  act  of  the  obligor  indicating  an  intention  to  claim 
the  land  or  repudiate  the  sale ; 6  but  the  statute  attaches  from  the 

1  Gennings  v.  Norton,  35  Me.  308. 

2  Tucker  v.  White.  2  D.  &  B.  (N.  C.)  Eq.  289. 

3  Wilson  v.  Wilson,  1  McMull.  (S.  C.)  Eq.  320.  And  see  Smith  v.  Fiske,  31 
Me.  512. 

4  Brown  v.  Houdlette,  10  Me.  399. 

5  Austin  v.  Moore,  7  Met.  (Mass.)  116. 
•  Yeary  v.  Cummins,  28  Tex.  91. 

[stats,  of  lim.  —  26] 


402  STATUTES   OF   LIMITATION.  [CHAP.    XIV. 

date  of  the  first  demand,  and  a  new  right  cannot  be  acquired  by 
a  new  demand. 

Sec.  176.  Effect  of  Acknowledgment  of  Payment  on  Specialties. 
—  In  those  States  where  no  provision  is  made  by  statute  relative 
to  specialties,  the  effect  of  acknowledgment  is  thus  expressed  by 
Mr.  Banning  in  his  work  on  Limitations.1  The  principle  on 
which  the  courts  acted  previously  to  the  statute  we  are  now  con- 
sidering was  this:2  there  was  then  no  statute  which  prevented  a 
bond  creditor  coming  and  claiming  his  debt  at  any  time;  but  the 
courts  of  law,  and  the  courts  of  equity  following  them,  held  the 
doctrine  of  presumption,  that  after  a  certain  lapse  of  time  pay- 
ment must  be  presumed,  and  when  an  action  was  brought  on  a 
bond  or  other  specialty,  what  the  courts  of  law  did  with  respect 
to  a  defense  founded  on  a  lapse  of  time  was,  that  after  twenty 
years  the  judge  would  direct  the  jury  to  presume  payment.3  Of 
course  that  presumption,  like  any  other,  was  capable  of  being 
rebutted  by  evidence,  and  the  court  held  that  evidence  of  an 
acknowledgment  would  be  sufficient  to  rebut  the  presumption.4 

1   Page  185.     See  Blair  v.  Ormond,  17  Q.  B.  423 

5  See  Moodie  v.  Bannister,  4  Drew.  432.  See  Hart  v.  Nash,  2  C.  M.  &  R.  337. 
and  Hooper  v.  Stephens,  4  Ad.  &  El.  71;  Worthington  v.  Grimsditch,  7  Q.  B. 
479;  Callander  v.  Howard,  10  C.  B.  290;  Beran  v.  Gething,  3  Q.  B.  740;  and 
the  note  in  1  Smith's  Lead.  Cas.  321,  on  Whitcomb  :•■.  Whiting,  2  Dougl.  652; 
Lucas  v.  Jones,  5  Q.  B.  949;  Gillingham  v.  Waskett,  13  Price,  434;  Sanders  v. 
Coward,  15  M.  &  W.  48,  56;  Tuckey  v.  Hawkins,  4  C.  B.  655;  Bealy  v.  Green- 
slade,  2  C.  &  J.  61;  Hollis  v.  Palmer,  2  Bing.  New  Cas.  713,  and  Savile  v. 
Jackson,  13  Price,  715. 

3  In  Jackson  :.  Pierce,  10  Johns.  (N.  Y.)  414,  where  a  mortgage  had  lain  dor- 
mant from  April,  1774,  lo  March,  1802,  it  was  held  that,  after  deducting  the 
period  of  the  American  Revolution,  the  lapse  of  time  was  sufficient  to  afford  the 
presumption  of  payment.  The  presumption  becomes  absolute  after  the  lapse 
of  the  period  fixed  by  statute  for  prescription  in  analogous  cases.  If  there  is 
no  entry  or  payment  of  interest,  and  being  a  presumption  of  law,  it  is  in  itself 
conclusive,  unless  encountered  by  distinct  proof.  Whitney  v.  French,  25  Vt.  663. 
In  Ware  v.  Bennett,  18  Tex.  794,  a  neglect  to  foreclose  a  mortgage  for  four 
years  after  it  falls  due  was  held  not  conclusive  ground  for  assuming,  in  favor 
of  purchasers  of  the  mortgagor's  interest,  that  the  mortgage  had  been  paid, 
ilso  Appleton  v.  Edson,  8  Vt.  239. 

1  But  this  presumption  is  effectually  repelled  by  a  payment  of  interest 
within  the  statutory  period  before  action  brought,  Hughes  v.  Blackwell,  6  Jones 
(\.  C.)  Eq.  73;  and  the  admissions  of  a  mortgagor  that  the  mortgage  debt  is 
due  are  evidence  to  rebut  the  presumption  of  payment,  especially  where  it 
does  not  appear  that  the  true  tenant  had  an  interest  before  the  admissions 
were  made.     Frear  v.  Drinker,  8  Penn.   St.  520. 


§I76.|  SPECIALTIES.  403 

In  fact,  it  was  impossible  for  a  debtor  against  whom  an  action 
was  brought  to  ask  the  court  to  pronounce  that  the  debt  has 
been  paid,  when  he  had  himself  acknowledged  the  existence  of 
the  debt.  It  appears,  therefore,  to  be  a  correct  statement  that, 
in  the  case  of  a  specialty  debt,  the  court  could  receive  in  evidence 
any  acknowledgment  of  the  alleged  debtor  in  any  shape,  even 
when  that  acknowledgment  was  made  to  a  third  person,  and  that 
it  was  not  necessary  that  such  acknowledgment  should  amount 
to  a  new  cause  of  action.1 

Where  specialties  are  brought  within  the  statute,  and  no  pro- 
vision is  made  for  keeping  them  on  foot  by  an  acknowledgment, 
and  acknowledgment  can  have  no  effect  in  suspending  the  opera- 
tion of  the  statute,  because  the  action  thereon  is  not  founded 
upon  a  promise,  but  upon  an  obligation  of  a  higher  nature,  and 
in  order  to  keep  it  on  foot  the  recognition  of  its  validity  and 
continuance  must  be  of  as  high  a  character  as  the  instrument  cre- 
ating the  obligation.  Payments,  however,  as  will  be  seen,  may 
have  this  effect.2 

The  presumption  of  payment,  so  far  as  mortgages  are  concerned,  does  not 
apply  so  long  as  the  possession  of  the  mortgaged  premises  is  in  the  mortgagee. 
Crooker  v.  Jewell,  31  Me.  306. 

1  In  New  Hampshire,  in  Howard  v.  Hildreth,  18  N.  H.  105,  it  was  held  that 
when  a  mortgagor  has  retained  possession  of  mortgaged  premises  foi  more 
than  twenty  years  after  the  execution  of  the  mortgage,  but  has  acknowledged 
the  debt  and  paid  interest  upon  it  within  twenty  years  there  is  no  presumption 
that  the  debt  is  discharged;  and  the  same  has  also  been  held  in  South  Carolina. 
Wright  v.  Eaves,  10  Rich.  (S.  C.)  Eq.  582.  But  in  Gould  v.  White,  26  N.  H. 
178,  it  was  held  that  unexplained  possession  of  the  mortgaged  premises  for 
more  than  twenty  years,  may  be  left  to  the  jury  in  connection  with  proof  of 
partial  payments  and  other  evidence,  as  tending  to  show  that  the  mortgage 
debt  was  fully  paid.  A  presumption  of  payment  is  not  like  an  actual  payment 
which  satisfies  the  debt  as  to  all  the  debtors;  it  operates  as  a  payment  only  in 
favor  of  the  party  entitled  to  the  benefit  of  the  presumption;  and,  in  case  of 
the  lapse  of  over  twenty  years  from  the  time  when  a  bond  secured  by  mort- 
gage becomes  due,  the  presumption  of  payment  of  the  mortgage  will  not,  as  to 
the  purchaser  and  those  claiming  under  him,  be  repelled  by  proof  of  a  pay- 
ment made  by  the  mortgagor  after  he  had  conveyed  the  premises  to  another 
person.     New  York  L.  Ins.  Co.  v.  Covert,  29  Barb.  (N.  Y.)435_ 

5  See  Chap.  XVII.,  Mortgages. 


404  STATUTES   OF    LIMITATION.  [CHAP.   XV. 


CHAPTER  XV. 

Torts  quasi  e  contractu. 

Sec.    177.  Time  runs  from  Date  of.  Sec.   182.  What    requisite    to  establish 

T78.  Consequential  Injury.  Prescriptive  Right. 

179.  Negligence.  183.  Trover. 

180.  Nuisances.  184.  Trespass,  Assault,  etc. 

181.  Aclion  must  be  brought  be-  185.  Criminal  Conversation. 

fore  Prescriptive  Right  has  186.    Seduction, 

been  acquired.  187.    Failure  to  perform  Duty  im- 

posed by  Statute. 

SEC.  177.  Time  runs  from  Date  of.  —  In  the  case  of  torts  arising 
quasi  e  contractu,  the  statute  usually  commences  to  run  from 
the  date  of  the  tort,  not  from  the  occurrence  of  actual  damage,  (a) 
And  ignorance  of  the  facts  on  the  part  of  the  plaintiff  will  make 
no  exception  to  the  rule,  though  he  discovers  his  injury  too  late 
to  have  a  remedy,  (b)  This  will  be  the  case  too,  even  where  the 
defendant  has  betrayed  the  plaintiff  into  permitting  the  time  to 
elapse  in  fruitless  inquiries  and  negotiations.1 

There  may  be  cases  where  the  injured  party  may  bring  trespass 
or  trover,  or  may  waive  both,  and  bring  assumpsit  for  the  pro- 
ceeds of  the  property  when  it  has  been  converted  into  money, 
and  in  the  last  case  the  tortfeasor  cannet  allege  his  own  wrong  so 
as  to  bring  time  back  to  the  day  of  the  tort.2  And  where  a  party 
has  his  elction  between  trover  and  assumpsit,  the  fact  that  one 
remedy  is  barred  will  not  defeat  the  other  if  the  statute  has  not 
run  upon  that.3  Thus,  where,  the  maker  of  a  note  which  was 
outlawed  asked  the  holder  to  see  it,  and  upon  its  being  shown, 
destroyed   it,  it  was  held  that  trover  lay  for   the  note,  and  that 

1  East  India  Co.  v.  Paul,  7  Moo.  P.  C.  85.  See  as  to  directors  of  insolvent 
bank    Hinsdale  -.  Larned,  16  Mass.  65. 

2  Lamb  v.  Clark,  5  Pick.  (Mass.)  193.  But  there  must  be  an  actual  conver- 
sion,  Jones  v.  Hoar,  id.  285.  See  Lamine  v.  Dorrell,  2  Ld.  Raym.  1216; 
Hitchin  v.  Campbell,  2  W.  Bl.  827;   Hambly  v.  Trott,  Cowp.  371. 

3  Ivey  v.  Owens,  28  Ala.  641. 

(a)  See  Winter',  v.  De  Turk  (Penn.),  Alabama  &  Vicksburg  Ry.  Co.  v.  Jones 
7  I.    R.  A.  r.58,  and  note.  (73    Miss,    no),   55  Am.   St.   Rep.    488, 

(/')  See  34   Am.    L.    Reg.  (N.  S.)  461;     515,  n. 


§  178.]  TORTS   QUASI   E   CONTRACTU.  405 

the  measure  of  damages  was  the  face  of  the  note  with  interest, 
notwithstanding  the  fact  that  the  statute  might  have  been  suc- 
cessfully interposed  against  an  action  upon  the  note  itself.1  The 
ground  upon  which  this  ruling  rests  is,  that  it  cannot  be  pre- 
sumed that,  in  an  action  upon  a  note  or  other  obligation,  so 
unlawfully  destroyed  by  the  maker,  he  would,  although  entitled 
to  do  so,  have  set  up  the  statute  to  defeat  it.2 

Sec.  178.  Consequential  Injury.  —  Although,  as  has  been  seen, 
time  commences  usually  to  run  in  defendant's  favor  from  the 
time  of  his  wrongdoing,  and  not  from  the  time  of  the  occurrence 
to  the  plaintiff  of  any  consequential  damage,  yet  in  order  to 
produce  this  result  it  is  necessary  that  the  wrongdoing  should 
be  such  that  nominal  damages  may  be  immediately  recovered. 
Every  breach  of  duty  does  not  create  an  individual  right  of 
action;  and  the  distinction  drawn  by  moralists  between  duties  of 
perfect  and  imperfect  obligation  may  be  observed  in  duties  aris- 
ing from  the  law.  Thus  a  breach  of  public  duty  may  not  inflict 
any  direct  immediate  wrong  on  an  individual ;  but  neither  his  right 
to  a  remedy  nor  his  liability  to  be  precluded  by  time  from  its  prose- 
cution, will  commence  till  he  has  suffered  some  actual  inconven- 
ience.3 But  it  is  otherwise  where  there  is  a  private  relation 
between  the  parties,  where  the  wrongdoing  of  one  at  once  cre- 
ates a  right  of  action  in  the  other;  and  it  may  be  stated  as  an 
invariable  rule  that  when  the  injury,  however  slight,  is  complete 
at  the  time  of  the  act,  the  statutory  period  then  commences, 
but,  when  the  act  is  not  legally  injurious  until  certain  conse- 
quences occur,  the  time  commences  to  run  from  the  consequen- 
tial damage,  whether  the  party  injured  is  ignorant  of  the  circum- 
stance from  which  the  injury  results  or  not.4     In  a  case  where 

1  Outhouse  v.  Outhouse,  13  Hun  (N.  Y.)  130. 
-  Ibid.;   Booth  v.  Powers,  56  N.  Y.  22. 

3  Hurst  v.  Parker,  1   B.  &  Aid.  92;  Tanner  v.  Smart,  6  B.  &  C.  603. 

4  In  Bank  of  Hartford  Co.  v.  Waterman,  26  Conn.  324,  where  an  officer  who 
had  undertaken  to  attach  leal  estate  on  mesne  process  made  return  that  he  had 
attached  a  certain  piece  of  land  belonging  to  the  defendanl,  and  had  left  with 
the  town  clerk,  as  in  such  cases  he  was  required  by  the  statute  to  do,  a  true 
and  attested  copy  of  the  writ  and  of  his  return  thereon,  but  in  fact  he  had  left 
a  copy  of  the  writ  and  his  return  in  the  town  clerk's  office,  describing  another 
and  different  piece  of  the  defendant's  land  from  that  described  in  his  return 
on  the  original  writ,  Storrs,  J.,  said-  "  Ignorance  of  his  rights,  on  the  part  of 
in?   person  against  whom   the  statute  has   begun    to  run  will  not  suspend  its 


406  STATUTES    OF    LIMITATION.  [CHAP.    XV. 

the  plaintiff  had  been  damaged  by  the  cutting  away  of  certain 
pillars  of  coal  which  supported  the  surface,  and  which  ultimately 
injured  in  consequence,  it  was  considered  that  time  commenced 
to  run  against  the  plaintiff  on  the  occurrence  of  the  damage,  and 

operation.  He  may  discover  his  rights  too  late  to  take  advantage  of  the  appro- 
priate remedy.  Such  is  one  of  the  occasional  hardships  necessarily  incident 
to  a  law  arbitrarily  making  legal  remedies  contingent  on  mere  lapse  of  time. 
Brown  v.  Howard,  2  B.  &  B.  73;  Sims  :■.  Britlon,  5  Exch.  802;  Short  v.  Mc- 
Carthy, 3  B.  &  Aid.  626;  Blair  v.  Bromley,  5  Hare,  542;  Battley  v.  Faulkner, 
3  B.  &  Aid.  288.  When  the  injury,  however  slight,  is  complete  at  the  time  of 
the  act,  the  statute  period  commences,  Wordsworth  v.  Harley,  1  B.  &  Ad.  391; 
but  when  the  act  is  not  legally  injurious  until  certain  consequences  occur,  the 
statute  begins  to  run  from  the  consequential  injury,  Roberts  v.  Read,  16  East 
215.  In  Gillon  v.  Boddington,  1  Car.  &  P.  541,  it  is  agreed  that  the  language 
of  the  English  statute  was  even  somewhat  strained  to  make  its  construction 
comport  wilh  this  very  just  principle,  the  limitation  by  that  enactment  taking 
dale  from  the  '  fact  committed,'  and  the  court  extending  the  meaning  of  this  term 
so  as  to  make  consequential  damage  one  essential  part  of  the  fact  referred  to. 
"  It  only  remains,  therefore,  to  determine  whether  a  neglect  to  serve  mesne 
process,  or  a  false  return  of  such  process,  is  actionable  in  itself,  or  whether  it 
becomes  so  only  when  a  real  injury  follows  from  it.  No  distinction  can  be 
drawn  between  a  neglect  to  serve  and  a  false  return  in  deciding  the  point  pre- 
sented. Lord  Denman,  in  Wylie  v.  Birch,  4  Q.  B.  566.  See  Planck  v.  Ander- 
son, 5  T.  R.  37;  Barker  v.  Green,  2  Bing.  317;  Brown  v.  Jarvis,  1  M.  &  W.  708; 
Williams  v.  Moyston,  4  M.  &  W.  145.  If  we  suppose  a  direct  relation  between 
the  plaintiff  and  the  officer  —  a  legal  reciprocity  of  right  and  duty  between 
them,  and  concede  that  damages  are  to  be  presumed  where  the  former  is 
invaded  or  the  latter  violated,  it  is  clear  that  neither  of  these  incidents  occurs 
until  samething  more  than  a  neglect  to  attach  or  an  incorrect  return  is  imput- 
able to  the  officer.  The  doctrine  to  which  our  course  of  reasoning  has  brought 
us  is  not  novel  as  a  general  proposition.  Lord  Tenterden,  in  Lewis  v.  Mor- 
1  ind,  2  B.  &  Aid.  64,  previous  to  the  decision  of  Barker  v.  Green,  supra,  used 
this  language:  '  Supposing  the  sheriff  to  be  guilty  of  a  breach  of  duty  in  letting 
the  party  out  of  custody,  it  does  not  thence  follow  that  any  action  can  be  main- 
tained against  him  for  such  breach  of  duty.'  The  opinion  of  Lord  Denman, 
in  the  case  of  Randell  v.  Wheble,  10  Ad.  &  El.  719,  contains  this  passage: 
'  We  agree  with  the  case  of  Brown  v.  Jarvis,  that  it  is  the  duty  of  the  sheriff  to 
arrest  the  party  on  the  first  opportunity  that  he  can;  but  we  also  agree  with  the 
court  in  that  case,  that  some  actual  damage  must  be  shown  in  order  to  make 
the  negligence  of  the  sheriff  in  that  respect  a  cause  of  action.'  In  a  later  case, 
the  same  judge  says:  '  When  the  clear  right  of  a  party  is  invaded  in  conse- 
quence  of  another's  breach  of  duty,  he  must  be  entitled  to  an  action  against 
thai  party  for  some  amount.'  Clifton  v.  Hooper,  6  Ad.  &  El.  468."  The  court 
hel  I  that  the  statute  of  limitations  took  date  from  the  time  of  the  consequen- 
tial injury,  and  not  from  the  misfeasance  or  nonfeasance  of  the  officer,  and 
iiidgmenl  for  the  plaintiff.  See  also  Roberts  v.  Read,  16  East,  215,  and 
Gillon  :.  Boddington,  1  C,  &  P.  541;  and  see  Whitehouse  v.  Fellowes,  10  C. 
B.  N.  S.  705;  and  Denys  v.  Shuckburgh,  4  Y.  &  C.  42. 


§   178.]  TORTS    QUASI    E   CONTRACTU.  407 

not  from  the  date  of  the  removal  of  the  pillars.1  (a)  So  where 
the  trustees  of  a  turnpike  company  negligently  made  and  con- 
tinued in  their  road  improper  catchpits  for  water,  so  that  on 
some  occsions  the  water  flowed  over  and  injured  the  plaintiff's 
land,  it  was  held  that  the  continuance  of  the  catchpits  afforded 
a  new  cause  of  action  every  time  such  damage  was  caused,  and 
that  the  statute  only  ran  on  each  cause  of  action  from  the  time 
it  arose.2 

In  an  action  for  maliciously  opposing  the  discharge  of  an 
insolvent  debtor,  time  was  considered  to  run  from  the  date  of  the 
opposition,  and  not  from  the  cessation  of  imprisonment.3  But 
in  an  action  for  false  imprisonment  the  statute  does  not  begin  to 
run  until  the  imprisonment  ends.4  But  in  an  action  for  malicious 
prosecution  or  arrest,  the  statute  begins  to  run  as  soon  as  the 
process  is  served  or  the  arrest  is  made. 5 

1   Bonomi  v.  Backhouse,  5  Jur.  9  H.  L.  Cas.  503. 
'  Whitehouse  r.  Fellowcs,  10  C.  B.  N.  S.  765. 

3  See  Nicklin    v.  Williams,  10  Ex.  259;  Violett  v.  Sympson,  8  El.  &  Bl.  344. 

4  Dusenbury  v.  Keiley,  8  Daly  (N.  Y.)  537.  In  Eggington  v.  Lichfield,  1 
Jur.  N.  S.  908,  1  he  plaintiff  was  imprisoned  upon  an  illegal  warrant,  and  upon 
an  application  to  court  an  order  was  made  for  his  discharge.  Previously  to 
the  making  of  the  order  another  warrant  had  been  given  to  the  jailer  by  the 
parties  who  obtained  the  first  warrant,  and  the  jailer  detained  the  plaintiff 
upon  this  warrant  after  the  granting  of  the  order.  The  last  warrant  was  sub- 
sequently adjudged  illegal.  Held,  thai  the  imprisonment  under  the  first  war- 
rant was  terminated  by  the  order,  and  that  the  statute  of  limitations  began  to 
run  from  that  period. 

5  Pratt  v.  Page,  18  Wis.  337.  In  Nicklin  v.  Williams,  supta,  Parke.  B., 
referring  to  the  above  cases  as  to  consequential  damage,  said:  "  It  remains 
to  consider  some  cases  cited  and  much  relied  on,  showing  that  the  limitation  of 
actions  under  particular  statutes  directed  to  be  brought  within  a  certain  time 
'  from  the  fact  committed,'  dated  from  the  period  when  consequential  damage 
was  occasioned,  and  therefore  it  was  said  that  the  damage  was  the  cause  of 
action.  These  statutes  mean  no  doubt  the  limitation  to  run  from  the  act,  that 
is  the  cause  of  action.  But  on  examining  these  cases  they  do  not  appear  to  be 
for  injuries  to  rights,  which  this  is,  but  solely  for  consequential  damages,  where 
the  original  act  itself  was  no  wrong  and  only  became  so  by  reason  of  those 
damages." 

{a)  A  cause  of  action  does  not  arise  Wallsend    Local   Board,  [1891]  1  Q.  B. 

for  so   mining  coal  as  to  cause,  years  503.     See  Hall  v.  Norfolk,  [1900]  2  Ch. 

afterwards,   a   subsidence   of   the    soil  493;   Lewey  v.    Fricks    Coke  Co.,    166 

above,   until   such   subsidence   occurs,  Penn.    St.    536;    Scranton    Gas    Co.    v. 

whether  it  happens  by  fits  and  starts,  or  Lackawanna   Coal   Co.,  167  id.   120;  9 

goes  on   gradually  and    continuously.  Harvard    L.    Rev.    147.      See    infra,   § 

See     Darnley     Main     Colliery    Co.     v.  275  n.     (a) 
Mitchell,    11    A.    C.    127;    Crumbie    v. 


408  STATUTES    OF    LIMITATION.  [CHAP.   XV. 

An  important  distinction  exists  beween  actions  arising  from 
torts  and  upon  assumpsit,  in  that  the  right  to  the  former  cannot 
be  revived  by  acknowledgment.1 

Sec.  179.  Negligence.  —  In  actions  from  injuries  resulting  from 
the  negligence  or  unskilfulness  of  another,  the  statute  attaches 
and  begins  to  run  from  the  time  when  the  injury  was  first  inflicted. 
and  not  from  the  time  when  the  full  extent  of  the  damages  sus- 
tained has  been  ascertained.2     The  gist  of  the  action  is  the  neg- 

1  Galligher  v.  Hollingsworth,  3  H.  &  M.  (Md.)  122;  Goodwyn  v.  Goodwyn, 
16  Ga.  114. 

5  Crawford  v.  Gaulden,  33  Ga.  173;  Wilcox  v.  Plummer,  4  Pet.  (U.  S.)  172; 
The  Governor  v.  Gordon,  15  Ala.  72;  Bank  of  Utica  v.  Childs,  6  Cow.  (N.  Y.) 
238:  Morgan  v.  Plumb,  9  Wend.  (N.  Y.)  2S7;  Mardis  v.  Shackleford,  4  Ala. 
493;  Brown  v.  Howard,  2  B.  &  B.  73;  Thurston  v.  Blackiston,  36  Md.  501  In 
Bank  of  Utica  z.  Childs,  6  Cow.  (N.  Y.)  238,  a  notary  neglecied  to  charge  a 
prior  indorser  by  giving  the  requisite  notice  of  non-payment,  etc.,  and  the 
bank  was  compelled  to  pay  damages.  The  action  in  favor  of  the  bank  not 
having  been  commenced  until  more  than  six  years  after  the  negligent  act  was 
done,  was  held  barred  by  the  statute,  because  its  right  of  action  against  the 
notary  accrued  immediately  on  the  omission,  and  was  not  dependent  upon  the 
payment  of  damages  by  it.  In  Wilcox  v.  Plummer,  supra,  where  a  note  was 
placed  in  the  hands  of  an  attorney  for  collection,  and  he  neglected  to  join  an 
indorser  in  the  aclion,  and  sobsequently  he  sued  the  indorser,  but,  because  of 
a  mistake  in  the  process,  it  finally  failed,  and  the  statute  having  then  run  as 
against  the  indorser,  and  by  reason  thereof  his  liability  upon  the  note  ceased, 
the  question  being  whether  the  cause  of  action  arose  against  the  attorney  when 
the  mistake  was  made,  or  from  the  time  when  the  damage  was  finally  devel- 
oped, the  court  held  that  it  arose  and  became  complete  when  the  mistake  was 
made,  and  as,  dating  from  that  period,  the  statute  had  run  in  his  favor,  he  had 
judgment  in  his  favor  in  the  action. 

In  Dickinson  v.  Mayor,  etc.,  92  N.  Y.  584,  where  the  plaintiff's  complaint 
alleged  that  the  defendant  "  improperly,  carelessly,  negligently,  and  unlaw- 
fully suffered  ice  and  snow  to  be  and  remain  upon  the  crosswalks,"  at  the 
intersection  of  two  streets  in  the  city  of  New  York;  that  in  consequence  thereof 
the  plaintiff,  while  passing  over  said  crosswalk,  was  thrown  to  the  ground  and 
injured,  and  plaintiff  asked  to  recover  the  damages  sustained,  it  was  held  that 
the  action  was  "  to  recover  damages  for  a  personal  injury  resulting  from  neg- 
ligence "  within  the  meaning  of  the  provision  of  the  Code,  limiting  the  time 
for  the  commencement  of  such  action  to  three  years;  citing  Irvine  v.  Wood,  51 
N.  Y.  228;  Clifford  v.  Dam,  81  id.  56;  Sexton  v.  Zett,  44  id.  430;  Creed  v.  Hart- 
mann,  29  id.  591;  Congreve  v.  Smith,  18  id.  79;  Fisher  v.  Mayor,  etc.,  67  N. 
Y.  76. 

In  Watson  v.  Forty-second  Street  F.  R.  R.  Co.,  93  N.  Y.  522,  where  the  plain- 
tiff was  injured  by  reason  of  the  defendant's  negligence  in  April,  1877.  ancl  sne 
commenced  this  action  to  recover  damages  in  January,  1880,  it  was  held  that 
the  statute  of  limitations  was  not  a  bar,  as  the  case  was  governed  by  the  three 


§   179- J  TORTS    QUASI    E    CONTRACTU.  4O9 

ligence  or  breach  of  duty,  and  not  the  consequent  injury  resulting 
therefrom.1  But  where  a  person  or  corporation  is  primarily  liable 
for  the  negligence  or  misfeasance  or  malfeasance  of  another,  the 
statute  does  not  begin  to  run  upon  the  remedy  of  such  person  or 
corporation  against  the  person  guilty  of  such  negligence  or  breach 
of  duty  until  the  liability  of  such  person  or  corporation  has  been 
finally  fixed  and  ascertained;2  because  in  the  latter  case,  the  gist 
of  the  action  is  the  damage,  while  in  the  former  it  is  the  negli- 
gence or  breach  of  duty.  In  actions  for  negligence,  the  jury  are 
not  restricted  to  damages  accrued  up  to  the  time  of  action 
brought,  but  may  include  all  which  have  accrued  up  to  the  time 
when  the  verdict  is  rendered,  as  well  as  such  as  are  likely  to 
result  in  the  future.3  There  seems  generally  to  be  no  distinction 
as  to  the  time  when  the  statute  applies  between  actions  for  mis- 
feasance or  malfeasance  and  any  ordinary  action  on  the  case.'*  (a) 
But  in  actions  of  this  class  a  question  may  arise  as  to  the  exact 

years'  limitation  prescribed  by  the  Code,  not  bv  the  one  year's  rule  previously 
existing;  that  the  case  was  not  within  the  exception  in  the  provision  of  the 
Code,  making  the  rule  of  limitations  therein  prescribed  the  only  one  thereafter 
applicable  to  civil  actions,  except  where  a  person  was  entitled,  when  the  Code 
took  effect,  to  commence  an  action,  and  did  so  within  two  years  thereafter.  See 
Acker  v   Acker,  81  N.  Y.  143. 

1  Thurston  v.  Blackiston,  supra;  Guslin  v.  Jefferson  County,  15  Iowa,  158; 
Northrop  v.  Hill,  61  Barb.  (N.  Y.)  136;  Lathrop  v.  Snellbaker,  6  Ohio,  N.  S. 
276;  Argall  v.  Kelso,  1  Sandf.  (N.  Y.)qS;  Ellis  v.  Kelso,  18  B.  Mon.  (Ky.)  296; 
Sinclair  v.  Bank,  2  Strobh.  (S.  C.)  344;  Cook  v.  Rives,  13  S.  &  M.  (Miss.)  328; 
Battley  v.  Faulkner,  3  B.  &  Aid.  288;   Howell  v.  Young,  5  B.  &  C.  259. 

8  Veazie  v.  Penobscot  R.  Co.,  49  Me.  126. 

3  Wilcox  v.  Plummer,  supra. 

4  Baker  v.  Atlas  Bank,  9  Met.  (Mass.)  182;  Hinsdale  v.  Larned,  16  Mass.  65; 
Mather  v.  Green,  17  Mass.  60;   Fisher  v.  Pond,  1  Hill  (N.  Y.)  672. 

(a)  See  Robinson  v.  Moore.  7«  Miss.  Va.   687:  Birmingham   v.   Chesapeake 

89;   Moores  v.  Winter,  67  Ark   189;  Ott  &  Ohio  Ry.  Co.,  98  Va.  548. 

v.  Great  Northern  Ry.  Co.,  70  Minn.  50.  As  to  the  effect  of  the  statute  in  rela- 

A  general  provision  of  statute  limiting  tion  to  negligence  in  the  examination 

actions  on  contracts  not  expressl  y  men-  of  titles  to  land,  see  Brown  v.  Sims  (22 

tioned,  depends  upon  the  nature  of  the  Ind.  App.  317),  72  Am.   St.    Rep.  308, 

action,  and  not  upon  its  form.     Hence  319,  n;  infra,  §  289  n.      In  actions  for 

it    does   not  apply   to   trespass  on  the  personal   injuries    resulting    in    death, 

case  in  assumpsit  for  negligence  caus-  limitation  begins  to  run  at  the  time  of 

ing   personal    injuries;  and  generally,  the    death    and    not    of     the     injury. 

in  that  form  of  action,  when  the  cause  Louisville,   Evansville  &  St.    Louis  R. 

of   action   is  injury  to  the  person,  the  Co.   v.   Clarke,  152  U.  S.   230;   Nestelle 

limitation  in  assumpsit  is  the  same  as  v.  No.  Pac.  R.   Co.,   56   Fed.  Rep.  261; 

if   the  action    were  ex  delicto  in    form.  Hanna  v.  Jeffersonville  R.  Co.,  32  Ind. 

See  Anderson  v.  Hygeia  Hotel  Co.,  92  113.     See    Epperson    v.    Hosietter,    95 

Ind.  583. 


4IO  STATUTES    OF    LIMITATION.  [CHAI'.    XV. 

time  when  the  default  arose,  and,  as  a  right  of  action  does  not 
exist  until  default,  this  question  is  material.  Questions  of  this 
character  most  frequently  arise  in  actions  against  public  officers.1 
Where  a  statute  provides  that,  unless  a  claim  for  damages  done 
by  reason  of  the  negligence  or  wrongful  act  of  a  person  or  cor- 
poration, is  made  within  a  certain  time,  as,  within  thirty  days, 
three  months,  &c,  if  a  claim  is  made  within  that  time,  the  action 
is  not  barred,  if  brought  before  the  statute  of  limitations  has  run 
upon  the  class  of  actions  to  which  it  belongs.2 

Sec.  180.  Nuisances.  —  The  rule  in  reference  to  acts  amount- 
ing to  a  nuisance  is,  that  every  continuance  is  a  new  nuisance  for 
which  a  fresh  action  will  lie,  so  that,  although  an  action  for  the 
damage  from  the  original  nuisance  may  be  barred,  damages  are 
recoverable  for  the  six  years  preceding  the  bringing  of  the  action, 
provided  such  a  period  of  time  has  not  elapsed  that  the  person 
maintaining  it  has  acquired  a  presumptive  right  to  do  so.3  Thus,* 
in  an  action  brought  to  recover  damages  for  injuries  sustained  by 
reason  of  the  erection  of  a  dam,  which  set  back  the  water  of  a 
stream  and  overflowed  the  plaintiff's  land,  it  was  held  that  while 
the  plaintiff  was  barred  from  recovering  damages  arising  from 
the  erection  of  the  dam,  he  might  recover  for  its  continuance. 
The  same  rule  was  adopted  in  an  English  case,5  where  the  defend- 
ants, as  trustees  of  a  turnpike-road,  who  had  erected  buttresses  to 
support  it,  on  the  plaintiff's  land,  were  held  liable  for  its  contin- 
uance there,  although  they  had  already  been  sued,  and  responded 
in  damages  for  its  erection.6  But  while  this  is  the  rule  as  to  nu:- 
sances  of  a  transient  rather  than  of  a  permanent  character,  yet, 

1    Supra,  %  154. 

'  East  Tenn.  R.  Co.  v.  Bayliss.  74  Ala.  150  Such  actions  belong  to  the  class 
called  at  the  common  law  "  actions  on  the  case."  Newton  r.  N.  Y.  &  N.  E.  R. 
Co..  56  Conn.  21. 

3  Staple  v.  Spring,  10  Mass.  72;  Holmes  v.  Wilson,  10  Ad.  &  El.  503;  Bowyer 
v.  Cook,  5  V>i  G.  &  S.  236;  McConnel  v.  Kibbe,  29  111.  483-  See  Silsby  Manuf. 
Co.  v.  State  of  New  York,  104  N.  Y.  562. 

4  Staple  v.  Spring,  supra. 

I  [ulmes  v.  Wilson,  10  Ad.  &  El.  503. 
'  McConnel  v.  Kibbe,  29  111.  483.  In  Bowyer  v.  Clarke,  4  C.  B.  236,  the 
idant  placed  stumps  and  stakes  in  a  ditch  on  the  plaintiff's  land,  and  the 
plaintiff,  having  recovered  against  him  for  placing  the  stumps  and  stakes  there, 
brought  a  second  action  for  continuing  them  there,  and  it  was  held  that  he  could 
recover,  as  the  continuance  of  the  original  nuisance  amounted  to  a  new 
nuisance  each  day  it  was  continued. 


§   ISO.]  TORTS   QUASI    E    CONTRACTU.  41  I 

when  the  original  nuisance  is  of  a  permanent  character  so  that 
the  damage  inflicted  thereby  is  of  a  permanent  character,  and 
goes  to  the  entire  destruction  of  the  estate  affected  thereby,  or 
will  be  likely  to  continue  for  an  indefinite  period,  and  during  its 
existence  deprive  the  landowner  of  any  beneficial  use  of  that 
portion  of  his  estate,  a  recovery  not  only  may  but  must  be  had 
for  the  entire  damage  in  one  action,  as  the  damage  is  deemed  to 
be  original ; J  and  as  the  entire  damage  accrues  from  the  time  the 
nuisance  is  created,  and  only  one  recovery  can  be  had,  the  stat- 
ute of  limitations  begins  to  run  from  the  time  of  its  erection 
against  the  owner  of  the  estate  or  estates  affected  thereby.2  (a) 

1  Troy  v.  Cheshire  R.  R.  Co.,  23  N.  H.  ioi;  Anon.,  4  Dall.  (U.  S.)  147.  See 
also  Kansas  R.  R.  Co.  :.  Mihlman,  17   Kan.  224. 

'  In  Powers  v.  Council  Bluffs,  45  Iowa,  652,  (see  Wood  on  Nuisances,  88g) 
the  plaintiff  was  the  owner  of  certain  lots  in  Council  Bluffs.  In  1859,  the  lots 
were  crossed  by  a  meandering  stream  called  Indian  Creek.  In  order  to  remove 
the  stream  from  one  of  the  streets  of  the  city,  the  city  determined  to  and  did 
cut  a  ditch  along  the  side  of  the  street  and  across  the  end  of  the  plaintiff's  lots. 
The  stream  was  turned  into  the  ditch.     This  was  done  in  1859  and  i860.     The 

(a)  The  general  rule  is  that  no  private  therefrom,  and  not  when  the  defend- 
right  can  be  acquired  by  lapse  of  time  ant's  dam  or  other  cause  of  the  injury 
to  maintain  a  public  nuisance  or  to  is  erected;  and  the  fact  that  the  first 
interfere  with  the  established  rights  of  flowage  is  already  barred  does  not 
the  government  or  of  the  public;  but  defeat  a  suit  for  such  continuance  of 
this  rule  is  subject  to  some  exceptions,  the  wrong  as  occurs  within  the  time 
especially  as  to  rights  in  the  seashore,  limited  by  the  statute.  Burleigh  v. 
in  fisheries,  and  in  great  ponds.  See  Lumbert,  34  Me.  322;  Vickery  v.  Provi- 
West  Roxbury  v.  Stoddard.  7  Allen  dence,  17  R.  I.  651;  Stanchfield  v.  New- 
(Mass.)  158;  Hittinger  v.  Eames,  121  ton,  142  Mass.  no;  Miller  v.  Keokuk, 
Mass.  539;  Atty.-Gen.  v.  Revere  Cop-  etc.,  Ry.  Co.,  63  Iowa,  680;  St.  Louis, 
per  Co.,  152  Mass.  444;  Kellogg  v.  etc.,  Ry.  Co.  v.  Biggs  (52  Ark.  100),  20 
Thompson,  66  N.  Y.  8S;  Kelley  v.  New  Am.  St.  Rep.  174,  and  n.;  Daneri  v. 
York,  27  N.  Y.  164;  Dyer  v,  Curtis,  72  So.  Cal.  Ry.  Co.,  122  Cal.  507;  Hocutt 
Me.  181;  Cedar  Lake  Hotel  Co.  v.  v.  Wilmington  &  W.  R.  Co.,  124  N.  C. 
Cedar  Lake  Hydraulic  Co.,  79  Wis.  214;  Miller  v.  Hayden,  91  Ky.  215; 
297;  State  v.  Holman,  104  N.  C.  861;  Ala.  Gt.  So.  R.  Co.  v.  Shahan,  116  Ala. 
Olive  v.  State,  86  Ala.  8S;  Williams  v.  302;  Chattanooga  v.  Dowling.  101 
Harter,  121  Cal    47.  Tenn.    342;  Eastman    v.   St.    Anthony 

In  cases  of  continuing  nuisances  or  Co.,  12  Minn.  137. 
trespasses,  usually  their  continuance,  In  North  Carolina  it  is  held  that  the 
if  accompanied  by  fresh  damage  to  the  unlawful  diversion  of  water  from  a 
plaintiff,  constitutes  a  fresh  cause  of  stream,  though  not  strictly  an  ease- 
action.  See  Whitehouse  v.  Fellowes,  ment,  is  so  nearly  in  the  nature  of  an 
10  C.  B.  N.  S.  705,  781;  Lamb  v.  easement  as  to  require  a  continuous 
Walker,  3  Q,  B.  D.  389;  Peden  v.  Chi-  and  adverse  use  for  twenty  years  in 
cago,  etc.,  Ry.  Co.,  78  Iowa,  131;  order  to  raise  the  presumption  of  a 
HempsteJ  z.  Cargill,  46  Minn.  118;  grant,  and  that  such  diversion  is  not 
Murray  v.  Scribner,  74  Wis.  602;  Smith  a  "  continuing  trespass  "  under  the 
t.  Sedalia,  152  Mo.  283;  Doran  v.  statute  requiring  actions  therefor  to 
Seattle  (Wash.;,  64  Pac.  230.  So  in  ac-  be  brought  within  three  years.  Geer 
tions  for  flowing  land,  limitation  begins  v.  Durham  Water  Co.,  127  N.  C.  349. 
only  when  actual  damage  is  sustained 


412  STATUTES   OF    LIMITATION.  [CHAP.   XV. 

SEC.  181.  Action  must  be  brought  before  Prescriptive  Right 
has  been  acquired.  —  While,  as  we  have  stated,  each  continuance 
of  a  nuisance  is  treated  as  a  new  nuisance,  and  furnishes  a  new 
ground  of  action  which  affords  a  good  ground  of  recovery,  although 
the  statute  may  have  run  upon  former  injuries  from  the  same 
nuisance,  yet  this  proposition  only  holds  good  when  the  action  is 
brought  before  the  person  erecting  or  maintaining  the  nuisance 
has  acquired  a  prescriptive  right  to  do  so,  by  the  lapse  of  such 

ditch  was  extended  to  a  county  ditch,  but  was  not  cut  as  deep  as  the  county 
ditch,  into  three  feet;  in  consequence  of  which,  owing  to  the  nature  of  the  soil, 
a  cavity  was  created  at  the  point  where  the  city  ditch  fell  into  the  county  ditch, 
which  cut  back  up  the  stream.  It  reached  the  plaintiff's  lots  in  1866,  when  he 
began  to  sustain  damages  from  the  action  of  the  water.  Prior  to  the  com- 
mencement of  the  action  against  the  city  for  damages,  the  ditch  had  become 
fifty  feet  wide  and  twelve  feet  deep;  and  to  arrest  the  action  of  the  water  and 
confine  it  within  its  proper  channel  the  plainiiif  built  a  wall,  which  accom- 
plished the  desired  result.  The  statute  of  limitations  being  pleaded,  the  court 
below  directed  the  jury  to  find  a  verdict  for  the  defendant,  which  was  sus- 
tained upon  appeal.  Without  questioning  the  general  doctrine  announced  by 
the  court,  that,  when  the  damage  is  complete  by  the  original  act  creating  the 
nuisance,  the  statute  begins  to  run  from  that  time;  yet,  in  the  particular  case 
under  the  facts  stated,  we  cannot  assent  to  the  ruling  of  the  court,  that  the  plain- 
tiff's remedy  was  full  and  complete  where  damage  first  intervened  from  the 
defendant's  acts.  According  to  the  statement  of  the  court,  the  damages 
resulted  from  day  to  day  by  the  widening  of  the  ditch,  until,  from  a  ditch  of  a 
few  feet  in  width,  it  extended  to  a  width  of  fifty  feet,  and  might,  except  for  the 
a>:t  of  the  plaintiff  by  the  erection  of  the  wall,  have  extended  indefinitely.  To 
say  that  the  plaintiff  was  bound  to  know  from  the  first  injury  to  the  estate  that 
this  result,  in  the  very  nature  of  things,  would  ensue,  is  neither  logical  nor 
natural,  and  it  is  not  within  the  reason  of  the  case  of  Troy  v.  Cheshire  R.  R. 
Co.,  supra,  upon  which  the  court  relied.  In  that  case  the  damage  was  com- 
plete when  the  act  creating  the  nuisance  was  completed;  but  in  the  Iowa  case 
the  damage  was  prog  essing  from  day  to  day,  and  could  not  have  been  foreseen. 

A.  is  the  owner  of  a  house,  and  B.  is  the  owner  of  a  mine  under  it,  and, 
in  working  the  mine,  leaves  insufficient  support  to  the  house.  The  house  is 
not  damaged  until  some  time  after  the  workings  have  ceased.  Held,  thai  A. 
could  bring  an  action  at  any  time  within  six  years  after  the  mischief  happened, 
and  was  not  bound  to  bring  it  within  six  years  after  the  work  was  done  which 
originally  led  to  the  mischief.  Backhouse  v.  Bonomi,  9  H.  L.  Cas.  503,  1  El. 
B.  &  E.  622. 

The  defendants  were  the  trustees  of  a  turnpike  road,  and  the  plaintiff  alleged 
that  they  so  negligently  made  and  maintained  certain  catchpits  for  carrying  off 
the  water  from  the  road  that  large  quantities  of  water  ran  into  his  land  and 
collieries,  whereby  he  was  greatly  damaged.  The  plaintiff  first  complained  in 
July,  1859,  and  the  defendants  made  some  alterations;  he  was  again  damaged, 
and  complained  in  December  of  the  same  year,  and  eventually  brought  this 
action.     On  behalf  of  the  defendants,  it  was  contended   that  the  action  was  not 


§   l8l.]  TORTS    QUASI    E    CONTRACTU.  413 

a  period  as  bars  an  entry  upon  lands  adversely  held  by  another,1 
that  being  the  period  universally  adopted  in  this  country  for  the 
acquisition  of  prescriptive  rights.2  It  has  been  doubted,  in  at 
least  one  case,3  whether  a  prescriptive  right  could  be  acquired  to 
maintain  a  nuisance  that  merely  polluted  the  atmosphere  with 
offensive  smells,  or  smoke  and  noxious  or  destructive  vapors ;  but, 
regardless  of  this  case,  it  may  be  said  that  according  to  the 
authorities  such  a  right  can  be  acquired.4     The  burden  of  estab- 

brought  in  cime,  inasmuch  as  it  was  not  brought  within  three  months  after  the 
act  complained  of  was  committed,  as  enacted  by  sec.  147  of  the  Turnpike  Road 
Act,  3  Geo.  IV.,  c.  126.  Held,  that  the  action  was  in  time,  as  no  cause  of  action 
arose  to  the  plaintiff  so  long  as  the  works  of  the  defendants  caused  him  no 
damage,  and  that  the  cause  of  action  first  accrued  when  the  plaintiff  received 
actual  damage.  Whitehouse  v.  Fellowes,  9  C.  B.  N.  S.  901;  Same  v.  Same,  10 
id.  765.  See  Plumer  v.  Harper,  3  N.  H.  38;  Hamer  v.  Knowles,  6  H.  &  N.  454.  In 
Polly  v.  McCall,  37  Ala.  20,  an  action  was  brought  for  injuries  resulting  to  the 
plaintiff's  land  from  the  diversion  of  the  water  of  a  brook  by  means  of  a  ditch 
and  levee,  which  when  first  constructed  did  not  injure  the  plaintiff's  land, 
except  at  times  of  great  floods.  Subsequently,  the  ditch  became  filled  with 
sand,  and  the  plaintiff's  land  was  injured  by  the  overflow  of  water  from  it. 
Tje  court  held  that,  as  no  action  could  accrue  to  the  plaintiff  until  his  lands 
were  injured  from  the  maintenance  of  the  ditch,  the  defendant  could  acquire 
no  title  by  presumption  except  from  that  period. 

We  think  that  in  the  Iowa  case  the  court  failed  to  make  a  proper  distinction 
between  a  wrongful  act  amounting  to  a  nuisance  which  of  itself  creates  a  com- 
plete and  permanent  injury,  and  a  nuisance,  which  is  permanent,  but  the  injury 
from  which  is  not  only  continuous  but  also  constantly  increasing.  In  the 
former  case,  there  can  be  no  doubt  but  that  the  statute  would  run  from  the 
completion  of  the  thing  creating  the  nuisance;  but  in  the  latter  case  successive 
actions  would  lie  until  the  nuisance  is  abated.  See  Whitehouse  v.  Fellowes, 
supra.  In  Colrick  v.  Swinburne,  105  N.  Y.  503,  it  was  held  that  the  diversion 
by  the  owner  of  land  on  which  is  a  sprir»,  of  the  water  of  the  spring  from  its 
natural  channel,  whereby  an  owner  below  is  deprived  of  the  use  of  the  water 
on  his  premises,  is  a  legal  injury  for  which  the  party  injured  is  entitled  to  com- 
pensation in  damages.  Whether  the  use  made  by  the  owner  of  the  spring  is  a 
reasonable  exercise  of  his  right,  is  a  question  of  fact  for  a  jury.  Where  the 
injury  complained  of  was  the  diversion  of  the  waters  of  a  spring  from  the  plain- 
tiff's tannery,  it  was  held  that  the  diminished  rental  value  during  the  period 
of  diversion  was  the  proper  measure  of  damages. 

1  Wood  on  Nuisances,  717  et seq. 

2  Marr  1.  Gilliam,   1  Cold.  (Tenn.)488;  Sibley  v.  Ellis,  n  Gray  (Mass.)  417. 

3  Campbell  7.  Seaman,  2  T.  &  C.  (N.  Y.)  63  N.  Y.  568. 

4  Duncan  z:  Karl  of  Moray,  15  F.  C.  (Scotch)  302.  See  Dana  v.  Valentine,  5 
M  t.  (Mass.)  8.  When  a  parly's  right  of  property  is  invaded  he  may  maintain 
an  action  for  an  invasion  of  his  right,  without  proof  of  actual  damage      Grant 

•  v.  Lyman,  4  Met.  (Mass.)47o,  477;  Atkins  v.  Bordman,  2  id.  457;   Bolivar  Manuf. 
Co.  v.  Neponset  Manuf.  Co.,  16  Pick.  (Mass.)  247.     In  Charity  v.  Riddle,  14  F. 


414  STATUTES    OF    LIMITATION.  [CHAP.   XV. 

lishing  the  right  by  user  is  upon  him  who  asserts  it;  and,  apply- 
ing the  rules  applicable  to  the  acquisition  of  such  rights,  there 
are  very  few  cases  in  which  it  can  be  clearly  established.1 

SEC.  182.  What  requisite  to  establish  Prescriptive  Rights.— 
The  fact  that  a  noxious  trade  has  been  exercised  for  twenty 
years  in  a  particular  locality  does  not  by  any  means  establish  a 
prescriptive  right  to  exercise  it  there.  It  is,  however,  evidence 
from  which,  in  connection  with  other  proof,  the  right  may  be 
established.  But,  in  order  to  establish  the  right  as  against  any 
party  complaining,  the  burden  is  imposed  upon  the  defendant, 
who  sets  up  the  right  as  a  defense,  of  proving  that  for  the  period 
of  twenty  years  he  has  sent  over  the  premises  in  question  from 
his  works  an  atmosphere  equally  as  polluted  and  offensive  as  that 
complained  of.2  Proof  that  he  has  polluted  the  air  is  not  enough  : 
he  must  show  that  for  the  requisite  period  he  has  sent  over  the 
land  an  atmosphere  so  impure  and  polluted  as  to  operate  as  an 
actual  invasion  of  the  rights  of  those  owning  the  premises 
affected  thereby,  and  in  such  a  manner  that  the  owner  of  the 
premises  might  have  maintained  an  action  therefor.3     Less  than 

C.  (Scotch)  302,  the  defendants  had  erected  or  carried  on  in  the  suburbs  of 
Glasgow  for  more  than  twenty  years  an  establishment  for  the  manufacture  of 
glue,  which  emitted  nauseous  and  offensive  stenches.  Upon  a  hearing  upon  a 
petition  for  an  interdict  to  prevent  the  defendant  from  enlarging  his  works,  the 
court  held  that,  by  an  unmolested,  uninterrupted  exercise  of  his  trade  there  for 
more  than  twenty  years,  the  defendant  had  acquired  a  prescriptive  right,  as 
against  the  plaintiff,  to  continue  it,  but  that  he  could  not  increase  the  nuisance 
by  increasing  the  capacity  of  his  works,  and  prohibited  him  from  enlarging 
them.  Colville  v.  Middleton,  iq  F.  C.  (Scotch)  33q;  Miller  v.  Marshall,  5  Mur. 
(Scotch)  32;  Tipping  v.  St.  Helen  Smelting  Co.,  11  H.  L.  Cas.  643;  Biss  v.  Hall, 
6  Scott,  500;  Elliotson  v.  Feetham,  2  Bing.  N.  C.  134;  Roberts  v.  Clark,  18  L. 
T.  N.  S.  48;  Flight  v,  Thomas,  10  Ad.  &  El.  5qo. 

1    Bradley's  Fish  Co.  v.  Dudley,  37  Conn.  136. 

'  Flight  v.  Thomas,  10  Ad.  &  El.  5qo. 

3  Roberts  v.  Clarke,  18  L.  T.  N.  S.  4q;  Luther  v.  Winnissimmet  Co..  q  Cush. 
(Mass.)  171.  It  is  not  enough  to  show  that  a  noxious  trade  has  been  exercised 
in  a  particular  locality  for  twenty  years,  and  a  plea  setting  up  a  prescriptive 
right  in  that  way  would  be  bad.  and  a  verdict  for  the  defendant  upon  such  a 
plea  would  be  set  aside.  In  Flight  v.  Thomas,  10  Ad.  &  El.  5qo,  where  the 
plaintiff  brought  an  action  against  the  defendant  for  sending  offensive  smells 
over  his  premises.  Lord  Dcnman,  C.  [.,  said:  "  There  is  no  claim  of  an  ease- 
ment, unless  you  make  it  appear  that  the  offensive  smell  has  been  used  for 
twenty  years  to  go  over  to  the  plaintiff's  land.  The  plea  may  be  completely 
proved  without  proving  that  the  nuisance  ever  has  passed  bevond  the  limits  0/ 
the  defendant's  own  lind."     Littledale,  J.,  said:  "  The  plea  only  shows  that 


§   1 82.]  TORTS    QUASI    E    CONTRACTU.  4I5 

that  is  insufficient.  He  must  also  show  that  his  user  at  that  time 
when  the  action  is  brought  is  not  substantially  in  excess  of  that 
which  he  has  exercised  during  the  period  requisite  to  acquire  the 

the  defendant  has  enjoyed,  as  of  right,  and  without  interruption  for  twenty 
years,  the  benefit  of  something  that  occasioned  a  smell  in  his  own  land."  The 
judgment  was  reversed  and  judgment  rendered  for  the  plaintiff  non  obstante 
veredicto.  The  right  being  only  to  the  extent  of  the  use,  and  it  being  incum- 
bent upon  the  defendant  to  establish  the  right  by  proving  a  use  as  extensive  as 
that  complained  of,  Ballard  v.  Dyson,  1  Taunt.  179;  Richardson  v.  Pond,  15 
Gray  (Mass.)  387;  Atwater  v.  Bodfish,  n  Gray  (Mass.)  150;  and  in  addition 
thereto,  to  prove  that  for  the  requisite  period  the  noxious  smells  have  passed 
over  the  plaintiff's  premises,  to  such  an  extent  as  to  be  a  nuisance,  and  actionable 
as  such,  Flight  v.  Thomas,  10  Ad.  &  El.  590;  and  the  presumption  being  that 
he  who  does  an  act  upon  his  own  premises  confines  all  its  ill  effects  there,  t..e 
difficulty  of  establishing  a  prescriptive  right  in  such  a  case  is  obvious,  Flight  v. 
Thomas,  supra.  The  burden  assumed  by  the  plaintiff  in  such  cases  is,  of  show- 
ing that  during  the  whole  prescriptive  period  the  user  has  been  unlawful, 
Monks  v.  Butler,  1  Roll.  83;  Powell  v.  Millbank,  2  H.  Bl.  851;  Branch  v.  Doane, 
17  Conn.  402;  Casper  v.  Smith,  9  S.  &  R.  (Penn.)  33;  Cooper  v.  Barber,  3  Taunt. 
99;  Polly  v.  McCall,  37  Ala.  20;  Murgatroyd  v.  Robinson,  7  El.  &  B.  391.  The 
rule  is  that  "  a  prescription  is  entire  and  cannot  be  split  "  by  either  the  party 
setting  it  up  or  the  party  opposing  it.  In  Rogers  v.  Allen,  1  Camp.  308,  the 
plaintiff  brought  an  action  of  trespass  against  the  defendant  for  breaking  and 
entering  a  several  fishery.  The  plaintiff  alleged  in  his  declaration  a  prescriptive 
right  of  fishing  over  four  places  in  a  navigable  river.  Upon  trial,  he  failed  to 
prove  a.  right  in  but  three;  and  the  court  held  that  when  an  action  is  brought 
to  recover  for  an  injury  to  a  prescriptive  right,  the  prescription  must  be  proved 
as  laid,  and  that  if  the  right  is  only  shown  to  exist  in  three  of  the  places  named 
in  the  declaration,  the  variance  is  fatal,  and  no  recovery  can  be  had  even  though 
it  is  also  shown  that  the  trespasses  were  committed  in  one  of  the  three  places 
over  which  the  right  existed.  The  party  does  not  fail  because  he  shows  the 
right  to  be  more  ample  than  he  has  laid  it,  Johnson  v.  Thoroughgood,  Hob.  64; 
Bushwood  v.  Bond,  Cro.  Eliz.  722;  but  he  must  prove  it  to  exist  to  the  full 
extent  claimed.  Rotheram  v.  Green,  Noy,  67;  Congers  v.  Jackson,  Clay.  19; 
Corbett's  Case,  7  Coke,  5:  Hickman  v.  Thorny,  Freem.  211;  Kingsmill  v.  Bull, 
9  East,  185;  Morewood  v.  Jones,  4  T.  R.  157.  The  effect  of  this  rule  is  this: 
where  a  person  sets  up  a  prescriptive  right  to  do  an  act  wilh  which  he  is 
charged  in  an  action  on  the  case,  as  for  the  pollution  of  the  atmosphere  over 
the  plaintiff's  premises,  by  carrying  on  a  particular  trade,  he  is  bound  to  set 
up  a  right  to  do  all  that  he  is  charged  with  doing,  in  the  declaration  that  forms 
the  basis  of  an  action  for  damages.  He  cannot  defend  by  setting  up  a  pre- 
scriptive right  to  do  less;  and  if  he  sets  up  a  prescriptive  right  to  do  all  that  he 
is  charged  with  doing,  his  plea  fails  if  he  does  not  show  a  right  as  extensive  as 
the  one  exercised  by  and  charged  against  him  in  the  declaration.  Therefore 
he  does  not  sustain  his  plea  by  proof  of  a  right  to  pollute  the  air,  unless  he  also 
shows  that  he  had  a  right  to  pollute  it  to  the  extent  and  with  the  results 
charged  and  proved  against  him.  This  was  held  as  early  as  Rotheram  :•. 
Green,  Noy,  67,  and  has  not  been   materially  varied  since.     The  soundness  of 


416  STATUTES    OF    LIMITATION.  [CHAP.    XV. 

right.1  The  right  is  restricted  to  and  measured  by  the  use.2 
For  all  excess  of  user  an  action  lies.  The  enjoyment  of  a  limited 
right  cannot  lawfully  be  enlarged,  and  any  excess  of  use  over 
that  covered  by  the  actual  user  under  which  the  right  was  gained 
will  be  actionable.3 

In  order  to  establish  a  right  by  prescription,  the  acts  by  which 
it  is  sought  to  establish  it  must  operate  as  an  invasion  of  the  par- 
ticular right  which  it  is  sought  to  quiet,  to  such  an  extent  that 
during  the  whole  period  of  use  the  party  whose  estate  is  sought  to 
be  charged  with  the  servitude  could  have  maintained  an  action 
therefor.  The  rule  is,  that  a  prescription  can  only  operate 
against  one  who  is  capable  of  making  a  grant.  Therefore,  if  the 
estate  was  in  the  possession  of  a  tenant  for  life,4  or  for  a  term,5 
or  if  the  owner  of  the  fee  was  a  minor,6  a  married  woman,7  or  an 
insane  person,8  no  right  can  be  acquired  during  the  term,  or  while 
the  disability  exists.      In  order  to  acquire  the  right,  the  person 

the  doctrine  is  apparent,  and  is  well  sustained  by  authority.  Tapling  v.  Jones, 
ii  H.  L.  Cas.  290;  Weld  v.  Hornby,  7  East,  195;  Bailey  v  Appleyard.  3  Nev. 
&  P.  172;   Welcome  v.  Upton,  6  M.  &  W.  536. 

1  Weld  v.  Hornby,  7  Easl,  195;  Topling  v.  Jones,  ir  H.  L.  Cas.  265;  Gold- 
smith v.  Tunbridge  Wells  Imp.  Co.,  L.  R.  1  Eq.  352;  Baxendale  v.  Murray, 
L.  R.  2  Ch.  790;  Ball  v.  Ray,  8  id.  467;  Crossley  v.  Lightowler,  L.  R.  3  Eq. 
279;  Stein  v.  Burden,  24  Ala.  130. 

-  Ballard  v.  Dyson,  1  Taunt.  279;  Jackson  ?'.  Stacey,  1  Holt,  455;  Cowling 
■v.  Higginson,  4  M.  &  W.  245;  Peardon  v.  Underhill,  16  Q.  B.  123;  Davies  v. 
Williams,  id.  547;  Bower  v.  Hill,  2  Bing.  N.  C.  339;  De  Rutzen  v.  Lloyd,  5  Ad. 
&  El.  456;  Allan  v.  Gomme,  11  id.  759;  Higham  v.  Rabett,  5  Bing.  N.  C.  622; 
Henning  v.  Barnett,  8  Exch.  1S7;  Brooks  v.  Curtis,  4  Lans.  (N.  Y.  S.  C.)  283; 
Wright  v.  Moore,  39  Ala.  593;  Atwater  v.  Bodfish,  n  Gray  (Mass.)  150,  Rex- 
ford  v.  Marquis,  7  Lans.  (N.  Y.)  257;  Simpson  v.  Coe,  4  N.  H.  301;  Horner  v. 
Stillwell,  35  N.  J.  L.  307;  Noyes  v.  Morrill,  108  Mass.  396;  Stiles  v.  Hooker,  7 
C  nv.  (N.  Y.)  266;  Burrell  v.  Scott,  9  id.  279;  Dyer  v.  Dupey,  5  Whart.  (Penn.) 
584;  Rogers  v.  Allen,  1  Camp.  309;  Martin  v.  Goble,  id.  320;  Bealey  v.  Shaw, 
6  East  20S. 

::  Chandler  v.  Thompson,  3  Camp.  80:  Weld  v.  Hornby,  7  East,  195;  Tapling 
v.  Jones,  ii   H.  L.  Cas.  290;  Staight  v.  Burn,  L.  R.  5  Ch.  163. 

1   McGregor  v.  Wait,  10  Gray  (Mass.)  72;  Barker  v.  Richardson,  4  B.  &  Aid. 
Wood   v.  Veal,  5  B.  it   Aid.  454;   Harper  v.  Charlesworth,  4  B.  &  C.  574. 

*  Wood   v.  Veal,  supra.      In    Bright  v.  Walker,  1  C.  M.  &   R.  211,  it  was  held 
ihat  the  user  must  be  such  as  to  give  a  right  againsL  all  persons  having  estates 
in  the  lands  affected  thereby.     See  Winship  v.    Hudspeth,  10  Exch.   5,    Alder- 
on,  B. 

6  VVatkins  7.  Peck,  13  N.  H.  360;   Mebane  v.  Patrick,  1  Jones  (N.  C.)  26. 

1   McGregor  v.  Waite,  supra. 

II,  10  Allen  (Mass.)  557 


§  1 82. J  TORTS   QUASI    E   CONTRACTU.  417 

owning  the  estate  affected  thereby  must  be  in  a  condition  to 
resist  it.  But  where  the  adverse  use  has  begun  before  the  owner 
of  the  servient  estate  lets  it,  the  letting  of  the  estate  does  not 
prevent  the  acquisition  of  the  right.  He  having  been  in  a  posi- 
tion to  resist  the  adverse  use,  cannot,  by  voluntarily  putting 
himself  in  a  position  where  he  cannot  resist  it,  prevent  the  per- 
fection of  the  right  while  the  estate  is  in  possession  of  the  tenant.1 
Neither  does  the  fact  that  the  premises  are  in  the  possession  of 
a  tenant  prevent  the  perfection  of  the  right,  if  the  injury  is  of 
such  a  character,  and  is  known  to  the  landlord,  that  he  could 
maintain  an  action  for  an  injury  to  the  reversion.2 

It  is  only  as  against  such  rights  as  operate  an  injury  to  the 
reversion,  so  that  an  action  can  be  maintained  by  the  reversioner 
therefor,  that  a  prescriptive  right  can  be  acquired  while  the 
premises  are  in  the  possession  of  a  tenant ;  and  then,  in  order  to 
acquire  the  right,  the  user  must  be  open,  and  of  such  a  character 
that  the  reversioner  may  fairly  be  presumed  to  have  knowledge 
of  it,  or  actual  knowledge  must  be  shown.  Indeed,  the  user 
must  be  such  that  it  can  fairly  be  said  to  be  with  the  acqui- 
escence of  the  reversioner,  and  an  acquiescence  by  the  tenant 
does  not  bind  him.3  The  user  must  also  be  shown  to  have  been 
peaceable  and  uninterrupted,  so  that  it  can  be  said  to  have  been 
acquiesced  in  by  the  owner  of  the  estate  affected  by  it.4  The 
prescription  begins  to  run  from  the  time  when  a  legal  right  is 
actually  invaded  by  the  nuisances,  so  that  the  law  will  imply 
damage  therefrom,  and  must  continue  for  the  period  requisite 
under  the  statute  for  acquiring  a  title  to  land  by  adverse  enjoy- 
ment.5 

1  Mebane  v.  Patrick,  supra;  Cross  v,  Lewis,  2  B.  &  C.  686;  Tracy  v.  Ather- 
ton,  36  Vt.  503;  Tyler  v.  Wilkinson,  4  Mason  (U.  S.)  402. 

8  Wallace  v.  Fletcher,  30  N.  H.  434;  Shadwell  v.  Hutchinson,  4  C.  &  P.  333; 
Tucker  v.  Newman,  n  Ad.  &  El.  40. 

3  Bradbury  v.  Grinsell,  2  Wm.  Saunders,  516. 

4  Bealey  v.  Shaw,  supra;  Stillman  v.  White  Rock  Co.,  3  W.  &  M.  (U.  S.)  549; 
Nichols  v.  Aylor,  7  Leigh  (Va.)  546;  Smith  v.  Miller,  n  Gray  (Mass.)  145;  Tracy 
v.  Atherton,  36  Vt.  514;   Powell  v.  Bagg,  8   Gray  (Mass.)  441;  Baileys.  Apple 
yard,  3  N.  &  P.  157. 

6  Pollard  v.  Barnes,  2  Cush.  (Mass.)  191;  Parks  v.  Mitchell,  11  Exch.  788. 
But  as  to  what  is  such  a  continuous  user  as  will  perfect  the  right,  is  a  question 
to  be  determined  from  the  circumstances  of  each  particular  case,  and  is  to  be 
determined  with  reference  to  the  nature  and  character  of  the  right  claimed.  It 
is  not  to  be  understood  that  the  right  must  be  exercised  continuously,  in  the 
[stats,  of  lim.  —  27] 


418  STATUTES   OF    LIMITATION.  [CHAP.   XV. 

SEC.    183.   Trover.  — The  statute  begins  to  run  in  an  action  of 
trover  from   the  time  of  conversion.1  (a)     Thus,  in  the  Pennsyl- 

slrict  sense  of  the  word,  without  cessation  or  interruption,  but  that  it  is  to  be 
exercised  as  continuously  and  uninterruptedly  as  the  nature  of  the  right  claimed 
requires,  in  order  to  satisfy  a  jury  that  the  right  claimed  is  commensurate  with 
ihe  user.  Thus,  in  order  to  acquire  a  right  across  another's  land,  it  is  not 
essential  that  the  person  asserting  the  right  should  have  passed  over  the  way 
every  day  in  the  year,  or  even  every  month  in  the  year.  It  is  sufficient  if  he 
has  used  the  way  as  his  convenience  and  necessity  required,  and  that  his  user 
be  such  as  to  leave  no  room  to  doubt  his  intention  to  maintain  his  use  of  the 
way  as  of  right.  Pollard  v.  Barnes,  2  Cush.  (Mass.)  191;  Bodfish  v.  Bodrish, 
105  Mass.  317;  Lowe  v.  Carpenter,  6  Exch.  630;  Parks  v.  Mitchell,  11  Exch. 
788;  Hogg  v.  Gill,  1  McMullan  (S.  C.)  329;  Nash  v.  Peden,  1  Speers  (S.  C.)  17. 
But  he  must  not  suffer  unreasonable  periods  to  elapse  between  his  acts  of  user. 
Thus  it  has  been  held  that  where  a  party  claiming  a  right  of  way  over  another's 
land  to  get  the  hay  from  an  adjoining  lot  once  each  year,  the  exercise  of  this 
right  once  a  year,  as  of  right,  will  sustain  a  prescriptive  right  for  such  a  use. 
Carr  v.  Foster,  3  Q.  B.  581.  But  such  a  user  would  not  confer  a  right  of  way 
for  any  purpose  and  at  any  time  that  the  party  might  see  fit  to  exercise  it 
The  continuity  must  not  be  broken,  and  whether  or  not  it  has  been  depends 
upon  the  nature  of  the  easement  claimed,  and  non-user  in  reference  thereto. 
In  Coke's  Litt.  1136,  the  doctrine  as  borrowed  from  Bracton  is  laid  down  as 
follows:  "The  possession  must  be  long,  continuous,  and  peaceable.  Long, 
that  is,  during  the  time  required  by  law;  continuous,  that  is,  uninterrupted  by 
any  lawful  impediment;  and  peaceable,  because  if  it  be  contentious,  and  the 
opposition  be  on  good  grounds,  the  party  will  be  in  the  same  condition  as  at  the 
beginning  of  his  enjoyment.  There  must  be  long  use,  without  force,  without 
secrecy,  as  of  right,  and  without  interruption."  Here  all  the  requisite  ele- 
ments to  acquire  a  prescriptive  right  are  concisely  stated;  and  whether  or  not 
they  exist  in  a  given  case  is  a  question  of  fact  to  be  determined  by  the  jury,  in 
view  of  the  right  claimed,  the  manner  in  which  it  has  been  used,  and  the  pur- 
pose of  its  use.  The  burden  of  establishing  the  existence  of  all  these  elements, 
and  consequently  of  establishing  the  right,  is  always  upon  him  who  asserts  it. 
Pollard  v.  Barnes,  2  Cush.  (Mass.)  191;  Watt  v.  Trapp,  2  Rich.  (S.  C.)  136; 
Gerenger  v.  Summers,  2  Ired.  (N.  C.)  229;  Winnipiseogee  Lake  Co.  v.  Young, 
40  N.  H.  420.  436. 

1  Horsefield  v.  Cost.  Add.  (Penn.)  152;  Outhouse  v.  Outhouse,  13  Hun  (N. 
Y.)  130;  Montague  v.  Sandwich,  7  Mod.  99;  Fish  wick  v.  Sewall,  4  H.&J.(Md.) 
393.  In  this  view  it  becomes  important  lo  ascertain  what  amounts  to  a  conver- 
sion; and  it  may  be  said  that  any  illegal  act  of  dominion  over  the  property  of 

(a)  Trover  and  replevin   were  early  curred   when   the   property  was  taken 

held    to    be    included     in     the     words  into    possession.       Parker    v.    Harden, 

"actions   on   the  case"    in   §   3   of  the  121  N.   C.  57.     See  as  to  trover  under 

Btatute  of  James.     Swayn  v.  Stevens,  the  statute,  Struthers  v.  Peckham,  (R. 

Car.  245;  2  Wm.  Saund.   305.      In  I.)  45  Atl.  742;   Hawkins  v.  Stale  Loan 

i!,i  i  1  ountry  limitation  begins  to  run  as  &  Trust  Co.,  79  Fed.  Rep.  £0;   Hine  y. 

to  trovei  from   the  time  of  the  conver-  Commercial  B.ink,  119  Mich.  448;  Britt 

sion,  and,  in  the  absence  of  proof  as  to  v.  Pitts,  111  Ala.  401;   Morris  v.  Lowe, 

the   daU      il    ia    presumed   to   have  oc-  97  Tenn.   243;  Thompson  v,   Whitaker 


§   183.]  TORTS   QUASI    E    CONTRACTU.  419 

vania  case  cited  in  the  last  note,  an  action  of  trover  was  brought 
for  a  United  States  certificate  levied  upon  and  sold  on  an  exe- 
cution, and  it  was  held  that  the  statute  began  to  run  from  the 
date  of  sale.  But,  if  there  had  been  a  demand  upon  the  officer 
for  the  certificate  before  the  sale,  the  statute  would  have  run 
from  the  time  of  demand  and  refusal,  because  a  refusal  to  deliver 
up  property  which  the  defendant  has  no  right  to  keep  on  demand 
amounts    to    a    conversion    of    itself.1     Where    an    actual    con- 

anoiher  which  amounts  to  the  assertion  of  a  title  therein,  and  in  defiance  of  the 
real  owner's  t i tie,  is  a  conversion,  Beckley  v.  Howard,  2  Brev.  (S.  C.)  94; 
Webber  v.  Davis,  44  Me.  147;  whether  the  person  knew  of  the  plaintiff's  title 
thereto  or  not,  Harris  v.  Saunders,  2  Strofch.  Eq.  (S.  C.)  370;  and  even  though 
a  person  does  not  claim  title  in  the  goods,  yet  if  he  exercises  dominion  over 
them,  as  if  he  threatens  to  sue  the  owner  if  he  enters  upon  his  premises  to  take 
them  away,  he  is  chargeable  with  their  conversion,  Hare  v,  Pearson,  4  lred.  (N 
C.)  76.  Where  the  original  taking  is  wrongful,  a  right  of  action  accrues  imme- 
diately without  a  demand,  and  of  course  the  statute  begins  to  run  from  that 
time,  Farrington  v.  Payne,  15  Johns.  (N.  Y.)  431;  Woodbury  v.  Long,  8  Pick. 
(Mass.)  543;  Davis  v.  Duncan,  1  McCord  (S.  C.)  213;  nor  is  a  demand  necessary 
where  there  has  been  an  actual  conversion,  Durell  v.  Mosher,  8  Johns.  (N.  Y.) 
445;  Tompkins  v.  Haile,  3  Wend.  (N.  Y.)  406;  Hines  v.  McKinney,  3  Mo.  382; 
Jewett  v.  Partridge,  12  Me.  243.  But  when  goods  are  rightfully  obtained,  and 
there  has  been  no  actual  conversion,  a  demand  is  necessary  before  an  action 
can  be  brought,  and  in  such  a  case  the  statute  begins  to  run  from  the  time  of 
demand.  Montague  v.  Sandwich,  supra;  Thorogood  ■».  Robinson,  6  Q.  B.  722; 
Baldwin  v.  Cole.  6  Mod.  212. 

1  Read  v.  Markle,  3  Johns.  (N.  Y.)523;  Montague  v.  Smith,  supra.  In  Comp- 
ton  v.  Chandless,  4  Esp.  18,  Lord  Kenyon  said,  as  to  the  plea  of  the  statute  of 
limitations,  that  the  inclination  of  his  mind  was  that  the  plea  was  insufficient. 
That  in  the  case  of  an  action  for  trover,  if  the  goods  are  left  with  another  the 
statute  of  limitations  does  not  begin  to  run  from  the  time  of  delivery;  but  from 
the  time  of  demand  and  refusal.  According  to  Lord  Holt,  the  very  assuming 
to  one's  self  the  property  and  right  of  disposing  of  another  man's  goods  is  a 
conversion  of  them.  "And  certainly,"  observes  Lord  Ellenborough,  "  a  man 
is  guilty  of  a  conversion  who  takes  my  property  by  assignment  from  another, 
who  has  no  authority  to  dispose  of  it;  for  what  is  that  but  assisting  that  other 
in  carrying  his  wrongful  act  into  effect?"     M'Combie  v.  Davies,  6  East,  540. 

Iron   Co.,  41   W.   Va.   574;   Mutual  L.  cause  of  action,  since  the  allegation  of 

Ins.  Co.  v.  Garland  (Tex.  Civ.  App.),  trespass  maybe  treated  as  surplusage. 

56  S.   W.  551;    People   v.    Kendall,    14  Woodham  v.  Cline,  130  Cal.  497. 

Col    App.  175;   Frv  v.  Clow,  3  N.  Y.  S.  The  statute  applies  only  to  a  wrong- 

593;  Bowman  v.  Hoffman,  47  N.  Y.  St.  ful  act  done  bv  the  defendant  himself; 

Rep.  487.  if  one  person  is  guilty  of  a  conversion. 

Amendment    of     the    complaint    in  and  afterwards  another  person  is  guiltv 

an   action   for    conversion,    by    adding  of  a  conversion  of  the  same  thing,  the 

a  charge  of  trespass,  does  not  cause  the  application  of  the  statute  to  the  first  of 

statute  of  limitations  to  run  to  the  date  them    in    no    way    affects    the    other. 

of  the  amendment,  if  it  states  the  same  Miller  v.  Dell,  [1891]  1   Q.  B.  468,  471. 


420  STATUTES   OF   LIMITATION.  [CHAP.  XV. 

version  is  shown  to  have  been  made,  although  not  known  to  the 
owner,  the  statute  runs  from  the  date  of  the  conversion,  unless 
the  defendant  has  fraudulently  concealed  the  fact,  or  been  guilty 
of  fraud  to  prevent  the  owner  from  obtaining  knowledge  of  it 
within  the  statutory  period.1  So  where  the  original  taking  is 
unlawful,  as  no  demand  is  necessary,  or  proof  of  actual  conver- 
sion, a  right  of  action  accrues  from  the  time  of  the  taking.2  The 
question  as  to  how  far  the  title  to  personal  property  is  affected 
by  its  retention  by  a  person  until  the  statute  has  barred  an  action 
for  its  recovery  is  one  of  considerable  importance ;  and  it  may  be 
said  that,  within  the  jurisdiction  where  the  statute  has  run  upon 
the  claim,  there  seems  to  be  no  question  but  that  the  effect  of 
the  statute  is  to  transfer  the  legal  title  to  the  person  in  posses- 
sion, so  that  he  may  maintain  an  action  even  against  the  former 
owner   for   any   interference   therewith.3     Thus,  where  a  tenant 

And  if  such  person  acts  as  agent  for  another  who  subsequently,  although  with- 
out knowledge  that  the  sale  was  illegal,  adopts  it,  the  latter  will  also  be  liable. 
Hilbery  v.  Hatton,  33  Law  J.  Exch.  190;  Fowler  v.  Hollins,  L.  R.  7  Q.  B.  616. 

When  the  chattels  of  the  plaintiff  have  not  been  wrongfully  taken  possession 
of  by  the  defendant,  but  have  come  into  his  hands  in  a  lawful  manner,  he  can- 
not be  made  responsible  for  a  conversion  of  them  until  they  have  been  demanded 
of  him  by  the  owner  or  the  person  entitled  10  the  possession  of  them,  and  he 
has  refused  to  deliver  them  up.  Whenever,  therefore,  the  goods  of  one  man 
have  lawfully  come  into  the  hands  of  another,  the  owner,  or  person  entitled  to 
the  possession  of  them,  should  go  himself,  or  send  some  one  with  a  proper 
authority  to  demand  and  receive  them;  and  if  the  holder  1  f  the  goods  then 
refuses  to  deliver  them  up,  or  permit  them  to  be  removed,  there  will  be  evidence 
of  a  conversion.  Thorogood  v.  Robinson,  6  Q.  B.  772;  for  "whoever,"  observes 
Holt,  C.  J.,  "takes  upon  himself  to  detain  another  man's  goods  from  him  with- 
out cause,  takes  upon  himself  the  right  of  disposing  of  them,"  and  is  guilty  of 
a  conversion.  Baldwin  v.  Cole,  6  Mod.  212.  The  demand  and  refusal  do  not 
in  themselves  constitute  the  conversion.  They  are  evidence  of  a  conversion 
at  some  previous  period.     Wilton   v.  Girdlestone,  5  B.  &  Aid.  847. 

1  Granger  v.  George,  5  B.  &  C.  149;  Johnson  v.  White,  21  Miss.  584;  Smith  v. 
N'ewby,  13  Mo.  159;  Short  v.  McCarthy,  3  B.  &  C.  626;  Melville  v.  Brown,  15 
Mass.  82;  Ward  v.  Dulaney,  23  Miss.  410;  Clarke  v.  Marriott,  9  Gill  (Md.)  331; 
Brown  v.  Howard,  2  B.  &  B  73;  Jordan  v.  Thornton,  7  Ga.  517;  Dench  v. 
Walker,  14  Mass.  500;  Ashmead  v.  Kellogg,  23  Conn.  70.  That  a  fraudulent 
concealment  of  the  fact  of  conversion  will  defeat  the  operation  of  the  statute, 
pt  from  the  time  when  the  facts  were  or  ought  to  have  been  discovered, 
■en  held  in  South  Carolina  and  Mississippi,  and  doubtless  would  be  held 
in  all  the  Slates  where  fraud  is  regarded  as  sufficient  to  suspend  the  operation 
of  the  statute  in  any  case.  Fears  v.  Sykes,  35  Miss.  633;  Clarke  v.  Reeder,  I 
Speera  (S.  C.)  398;  Simons  v.  Fox,  12  Rich.  (S.  C.)  L.  392. 

'  Davis  v.  Duncan,  1  McCorrl  (S.  C.)  213:  Woodbury  7'.  Long,  8  Pick.  (Mass.)  543. 
Merceln   v.  Burton,  17   Tex.  2ofi,   Winburn  v.  Cochran,  9  id.  123;   Cockfield 


§  184.]  TORTS   QUASI    E   CONTRACTU.  42 1 

erects  buildings  upon  leased  premises  and  permits  them  to  remain 
there  for  more  than  six  years  after  his  time  has  expired,  the 
statute  of  limitations  bars  all  claim  for  their  recovery  by  him,  and 
transfers  the  title  thereto  to  the  owner  of  the  land.1  But,  in 
order  to  defeat  the  title  of  the  true  owner  to  the  property,  the 
possession  must  be  adverse,  the  same  rule  obtaining  in  this 
respect  as  obtains  relative  to  lands;2  but  the  possession  must  be 
continuous  in  the  person  seeking  to  avail  himself  thereof,  and  he 
cannot  tack  it  to  the  possession  of  another,  and  thus  acquire  title 
under  the  statute.3  If  the  property  is  held  as  bailee  under  a 
contract,  or  in  recognition  of  the  owner's  title,  the  statute  does 
not  run  against  the  owner  until  the  person  so  holding  it  has  done 
some  decisive  act  evincing  a  determination  to  deny  the  owner's 
title.  Thus,  where  bonds  were  pledged  to  a  person  as  security 
for  a  loan,  and  held  by  him  for  several  years,  it  was  held  that 
the  statute  did  not  begin  to  run  against  the  owner  until  he  had 
repaid  the  loan  and  demanded  the  bonds;  and  then,  upon  the 
refusal  or  neglect  of  the  pledgee  to  return  them,  the  statute 
began  to  run,  and  not  before.4  (V;)  In  such  a  case,  the  owner  has 
his  choice  of  remedies,  either  in  trover  for  the  conversion  or  in 
assumpsit  for  the  value,  of  the  property,  upon  the  implied  con- 
tract to  return  the  property  on  payment  of  the  loan  ;  consequently, 
although  an  action  of  trover  may  be  barred,  a  remedy  may  still 
remain  upon  the  implied  contract.5 

Sec.    184.   Trespass,  Assault,  &c.  —  In  an  action  for  seizing  per- 

v.  Hudson,  1  Brev.  (S.  C.)  311;  McArthur  v.  Carrie,  32  Ala.  75;  Howell;/.  Hair, 
15  id.  194.;  Bohannon  v.  Chapman,  17  id.  696;  Ewell  v.  Tedwell,  20  Ark.  136; 
Vandeverz>.  Vandever,  3  Met.  (Ky.)  137;  Clark  v.  Slaughter,  34  Miss.  65:  Divine 
v.  Bullock,  3  Met.  (Ky.)  418. 

1   Preston  v.  Briggs,  16  Vt.  124. 

'2  Baker  v.  Chase,  55    N.  H.  61. 

3  Beadle  v.  Hunter,  3  Strobh.  (S.  C.)  31;  Hobbs  v.  Ballard,  5  Sneed  (Tenn.) 
395;  Moffatt  v.  Buchanan,  11  Humph.  (Tenn.)  360,  Wells  v.  Ragland,  1  Swan 
(Tenn.)  501. 

4  Roberts  v.  Berdell,  61  Barb.  (N.  Y.)  37,  52  N.  Y.  644;  Jones  v.  Jones,  18 
Ala.  248. 

5  Kirkman  v.  Philips,  7  Heisk.  (Tenn.)  222. 

(a)  If  the  defendant  has  in  good  faith,  possession,    and   not   from   the  time  of 

and    without    notice    of    the    plaintiff's  his    subsequent    sale    of     the    goods, 

rights,  received    in    pledge  the  latier's  Harpending    v.    Meyer,     55    Cal.    555; 

goods   from   his    bailee,  and   has  after-  Kinkead     v.     Holmes    &     B.     F.     Co. 

wards  sold  them,  limitation  commences  (Wash.).  64  Pac.  157.     See   Hennessey 

to   run    when    the   defendant  acquired  v.  Stempel,  52  La.  Ann.  449. 


422  STATUTES    OF    LIMITATION.  [CHAP.    XV. 

sonal  property  under  an  execution  against  a  stranger,  the  statute 
begins  to  run  from  the  date  of  seizure,  and  the  fact  that  a  claim 
to  the  property  is  interposed  and  litigated  in  the  same  case  will 
not  suspend  the  operation  of  the  statute.  1  and  in  all  cases  of 
trespass,  either  to  the  person  or  property,  the  statute  runs  from 
the  time  it  was  committed,2  and  not  from  the  time  when  the  full 
extent  of  the  injury  was  ascertained.  This  is  also  the  rule  as  to 
trespass  qnarc  clausum  /regit  for  mesne  profits.3  In  equity  as 
well  as  at  law,  in  the  absence  of  any  special  circumstances  to  the 
contrary,  a  trespasser  in  possession  of  the  estate  of  another  must 
account  for  the  mesne  profits  for  the  whole  time  he  has  been  in 
possession,  so  far  as  the  account  is  not  barred  by  any  express 
statute.  But  such  circumstances  are  readily  assumed  ;  and  where 
the  defendants  have  been  in  justifiable  ignorance  of  plaintiff's 
title,  the  account  will  usually  be  taken  only  from  the  date  of  the 
filing  of  the  bill.4  In  an  adverse  suit  in  the  nature  of  an  eject- 
ment bill,  the  account  is  directed  only  from  the  filing  of  the  bill; 
but  in  a  suit  against  a  person  in  a  fiduciary  character  the  account 
is  taken  either  from  the  original  period,  or  if  the  court  thinks  fit, 
on  account  of  the  plaintiff's  laches,  for  the  six  years  only  previ- 
ous to  the  filing  of  the  bill.5  But  this  is  so  only  in  cases  where 
there  is  "  no  fraud,  no  suppression,  no  infamy."6 

SEC.  185.  Criminal  Conversation. — An  action  for  crim.  con. 
is  treated  as  an  action  on  the  case  rather  than  in  the  nature  of 
trespass,  as  the  injury  is  consequential  rather  than  direct,  and 
consequently  the  life  of  the  remedy  depends  upon  the  statutory 
period  provided  for  actions  on  the  case.7  Of  course  the  statute 
begins  to  run  from  the  time  when  the  offence  was  committed.8  (#) 

1  Baker  v.  Boozer,  58  Ga.  195. 

3  Kerns  v.  Schoonmaker,  4  Ohio,  331. 

3  Hill  v.  Myers,  46  Penn.  St.  15;  Lynch  v.  Cox,  23  id.  265. 

4  Dormer  v.  Fortescue,  3  Atk.  124;  Petti  ward  v.  Prescott,  7  Ves.  541;  Bowes 
v.  East  London  Waterworks,  3  Madd.  375-383;  Atry.-Gen.  v.  Exeter,  2  Russ. 
45;  Clarke  v.  Yonjje,  5  Beav.  523. 

0  Per  Wood,  V.  C,  in  Thomas  v.  Thomas,  2  K.  &  J.  79. 
1 1  icks  v.  Sallitt,  3  De  G.  M.  &  G.  782. 

1  Cook  v.  Sayer,  2  Wils.  85;  Sanborn  v.  Neilson,  5  N.  H.  314;  Macfadzen  v. 
Olivant,  6  East,  387. 

"  Tidd's  Practice,  5. 

(a)   In   Illinois,  where  a  wife  can  sue  but   is   one  not  specially  provided  for, 

f    r    enticing    away    her    husband,   her  and  so  within  the  five  years'  limitation. 

e  of   action    is   nol  "  for  an   injury  Bassett  z>.  Bassett,  22  111.  App.  543,  548. 
1  Bon,"  limited  lo  two  years. 


§§  1 86,  187.]  TORTS    QUASI    E   CONTRACTU.  423 

Sec.  186.  Seduction.  —  In  an  action  for  seduction,  the  statute 
begins  to  run  from  the  date  of  the  seduction ;  but  in  an  action 
by  a  parent  for  the  loss  of  service  resulting  from  such  seduction, 
the  statute  does  not  begin  to  run  until  the  birth  of  the  child  and 
the  mother's  recovery  therefrom,1  or  in  other  words,  until  the 
loss  of  service  has  accrued. 

SEC.  187.  Failure  to  perform  Duty  imposed  by  Statute. — 
Where  the  statute  imposes  a-  duty,  and  specifies  a  time  within 
which  it  shall  be  performed,  and  gives  to  certain  parties  a  remedy 
if  it  is  not  performed,  the  statute  begins  to  run  immediately  upon 
the  failure  to  perform  within  the  time  specified.  Thus,  where 
the  statute  requires  the  officers  of  a  corporation  to  file  an  annual 
report  in  a  certain  office,  on  or  before  a  certain  day,  and  pro- 
vides certain  remedies  upon  a  failure  to  make  such  report,  the 
statute  begins  to  run  immediately  upon  a  failure  to  perform  by 
the  day  named.2  (a)  In  all  such  cases,  the  decisive  question  is, 
When  did  the  plaintiff's  right  of  action  first  accrue?  and  from 
that  date  the  statute  runs. 

1  Wilhoit  v.  Hancock,  5  Bush  (Ky.)  567. 
*  Duckworth  v.  Roach,  8  Daly  (N.  Y.)  159. 

(a)  The  modern   action   provided  by  given    by   statute.      American    Credit 

statute  for  indemnity  from  the  officers  Indemnity  Co.  v.  Ellis  (Ind.),  59  N.  E. 

of  a  corporation    who   make   false  re-  679.     See   Louisville    &   N.    R.   Co.    v. 

ports,   is   for  indemnity   only    for   the  Pittman  (Ky.),  53  S.  W.  1040. 
fraud,  and  is  not  an  action  for  a  penalty 


424  STATUTES   OF   LIMITATION.  [CHAP.   XVI. 


CHAPTER  XVI. 
Executors  and  Administrators. 

Sec.  iS8.   Executor    may    pay    Barred  Sec.  194.   When  Statute  has  begun  to 

Debts  or  not,  in  his  Dis-  run  during  the  Life  of  the 

cretion.  Testator. 

189.  Effect  of  Statute  when  Cred-  195.   Executors  de  son  Tort. 

itor  is  Executor  or  Admin-  196.    Statutory  Provisions  relalive 

istrator;     when    Debtor  is  to  Suits  in  Favor  of  Dece- 

Executor,  etc.  denls'  Estates. 

190.  Acknowledgment  by  an  Ex-  197.   When     Parties     in     Interest 

ecutor.  may  set  up  the  Statute. 

191.  What    Acknowledgment    by  198.   Right  of  Executor  to  set  off 

an  Executor  is  sufficient.  Debt  barred. 

192.  Where  Executor  is  also  Dev-  199.    Rule  in  Equity  as  to  Claims 

isee  in  Trust  against  Decedent's  Estate. 

193.  Where    Statute    has    run 

against  Debt  before  Testa- 
tors Death. 

SEC.  188.  Executor  may  pay  Barred  Debts  or  not,  in  his  Dis- 
cretion. —  When  the  remedy  for  a  debt  is  barred  by  lapse  of 
time,  an  executor  or  administrator  is  nevertheless  not  obliged  to 
take  advantage  of  the  statute,  but  may  at  his  discretion  satisfy 
the  debt. {a)  "No  executor,"  said  Lord  Hardwicke,  "  is  com- 
pellable either  is  law  or  equity  to  take  advantage  of  the  statute 
of  limitations  against  a  claim  otherwise  well  founded. "  '      In  fact, 

1  Norton  ?/.  Frecker,  1  Atk.  524;  Faiifax  v.  Fairfax,  2  Cranch  (U.  S.  C.  C.) 
25;  Walter  v.    Radcliffe,  2  Desau.  (S.  C.)  577;  Jacson,  J.,  in  Scott  v.   Hancock, 

(a)  In  re  Huger,  100  Fed.  Rep.  805;  knowledge,  may  be  required  to  repay 

Woods  v.  Irwin,  141  Penn.  St.  278.     In  it  to  the  estate.     Midgley  v.  Midgley, 

New   Jersey,  the    rule  that  a  personal  [1893]  3  Ch.  282.     When  an    executor 

representative    may  waive    the  statute  refuses  to  set  up  the  bar  of  the  statute, 

of   limitations   applies    both  as  to   per-  a  residuary  legatee  mav,  it  seems,  raise 

sonalty  and  also  as  to  realty  when  the  this  objection.     In  re  Wenham,  [1892] 

latter   is   sold   under  a  decree  for  sale  3  Ch.  59. 

which  does  not  direct  that  the  land  be  In  New  York  it  is  held  that  an 
sold  free  from  the  lien  of  debts  due  to  acknowledgment  of  a  debt  by  an  ex- 
creditors.  First  Nat.  Bank  v.  Thomp-  ecutor  does  not.  in  the  absence  of  an 
son  (N.  J.  Eq.),  48  Atl.  333,  339.  express    promise  to  pay,  taks  the   case 

In  F-nrjland  an  executor  cannot,  how-  out  of  the  statute.     Schultz  v.  Morette, 

ever,  lawfully  pay  a  barred  debt  of  the  146   N.  Y.  137;  Yates   ».    Wing.  59   N. 

testator  after  it   is  judicially  declared  Y.   S.  78.     Also   that  an  executor  can 

that  it  is  not  recoverable  because  barred  neither  by  his  promise   nor  acknowl- 

by  the  stat  u\e  ;  and  probably  also  if  such  edgment,  oral  or  written,  revive  a  debt 

payment    is   against   the   testator's  de-  against  the  estate  of  his  testator  which 

•  lared  wish;  if  he  does  so,  he  is  guilty  is  already  barred  by  the  statute.     But- 

ol  a      va  tavit,  and  a  creditor  who  re-  ler  v.  Johnson,  m  N.  Y.  204;  Adams 

ceives    such    payment    with    notice    or  v.  Fassett,  149  N.  Y.  61,  66. 


§  188.]  EXECUTORS   AND   ADMINISTRATORS.  425 

it  has  been  treated  as  almost  a  duty  in  some  cases  for  an  executor 
to  satisfy  in  that  way,  in  his  representative  character,  the  con- 
science of  his  testator.'  And  Lord  Hatherley,  in  overruling  a 
case,2  remarks  as  follows:  "It  certainly  cannot  be  considered 
to  be  law  at  the  present  day,  that  executors  paying  a  debt 
against  the  recovery  of  which  the  statute  of  limitations  might  be 
pleaded  as  a  legal  bar,  render  themselves  liable  to  those  who  are 
interested  in  the  testator's  property."3 

13  Mass.  162;  Woods  v.  Elliott,  49  Miss.  168;  Ritter's  Appeal,  23  Penn.  St.  95; 
Biddle  v.  Moore,  3  id.  178;  McFarland's  Estate,  4  id.  149;  Fritz  v.  Thomas,  1 
Whart.  (Penn.)  66;  Hodgdon  v.  White,  11  N.  H.  208,  Pollard  v.  Scears,  28  Ala. 
484;  Amoskeag  Mfg.  Co.  v.  Barnes,  48  N.  H.  25;  Emerson  v.  Thompson,  16 
Mass.  431;  Tunstall  v.  Pollard,  11  Leigh  (Va.)  1;  Kennedy's  Appeal,  4  Penn. 
St.  149;  Smith's  Estate,  1  Ashm.  (Penn.)  352;  Steel  v.  Steel,  12  Penn.  St.  67; 
Miller  v.  Dorsey,  9  Md.  317;  Batson  v.  Murrell,  10  Humph.  (Tenn.)  301;  Semmes 
v.  Magruder,  10  Md.  242;  Thayer  v.  Hollis,  3  Met.  (Mass.)  369;  Chambers  v. 
Fennemore,  4  Harr.  (.Del.)  368;  Payne  v.  Pusey,  8  Bush  (Ky.)  564;  Barnwall  v. 
Smith,  5  Jones  (N.  C.)  Eq.  168.  While  an  administrator  may  pay  a  debt  barred 
by  the  statute,  he  cannot  pay  a  debt  that  accrued  under  a  conlract  void  under 
the  statute  of  frauds;  and  if  he  does  so,  he  is  chargeabie  with  devastavit.  Baker 
v.  Fuller,  69  Me.  152.  The  reason  is  that  in  the  one  case  a  legal  liability  at 
some  time  existed  on  the  part  of  the  deceased  to  pay  the  debt,  while  in  the 
other  case  no  such  liability  ever  existed,  and  the  executor  has  no  power  to  ren- 
der a  void  contract  made  by  his  testator  valid.  Under  the  statute  in  Florida, 
in  a  suit  against  an  administrator  or  executor  on  an  open  account,  (he  court 
should  expunge  therefrom  every  item  due  five  years  before  the  death  of  a  testator 
or  intestate.     Patterson  v.  Cobb,  4  Fla.  481. 

1  Williamson  v.  Naylor,  3  Y.  &  C.  211,  note  (a);  Stahlschmidt  v.  Lett,  1  Sm. 
&  G.  415;  Byrd  v.  Wells,  40  Miss.  711.  Parker,  C.  J.,  in  Hodgdon  v.  White,  11 
N.  H.  208;  Scott  v.  Hancock,  13  Mass.  162.  In  Mississippi,  Byrd  v.  Wells, 
supra;  Ttotter  v.  Trotter,  40  Miss.  704.  In  Patterson  v.  Cobb,  4  Fla.  481,  it  is 
held  that  he  cannot  pay  debts  that  were  barred  anterior  to  the  granting  of 
administration,  but  that  he  may  pay  those  which  became  barred  after  he  has 
qualified.  Byrd  v.  Wells,  supra.  In  Kennedy's  Appeal,  4  Penn.  St.  149,  the 
court  held  that  an  executor  may  pay  a  just  debt,  though  barred  by  the  statute, 
and  that  net  payment  is  valid  as  against  the  distributees. 

2  McCulloch  v.  Dawes,  9  D.  &  Ry.  40. 

3  Hill  v.  Walker,  4  K.  &  J.  166.  The  rule  is  that  an  executor  may,  in  the 
exercise  of  his  discretion,  pay  a  debt  barred  by  the  statute,  although  the  per- 
sonal estate  of  the  testator  is  insufficient,  and  that  the  effect  of  such  paymen: 
by  him  is  to  throw  the  burden  thereof  upon  devisees  of  real  estate,  upon  which 
the  other  debts  are  in  consequence  thrown.  Lowis  v.  Rumney,  L.  R.  4  Eq.  451. 
where  Lord  Romilly,  M.  R.,  remarks:  "  I  think  it  is  much  to  be  regretted  that 
the  statute  did  not  destroy  the  debt,  instead  of  merely  taking  away  the  remedy 
for  it.  The  result  is  that  questions  constantly  arise,  and  amongst  others, 
whether  an  executor  may  not  pay  a  debt  barred  by  lapse  of  time.  I  am  of 
opinion  thai  in  the  exercise  of  his  discretion  he  may  do  so,  and  that  it  does  nor 


426  STATUTES   OF   LIMITATION.  [CHAP.   XVI. 

He  may  pay  a  debt  due  to  himself  upon  which  the  statute  has 
run  with  the  same  propriety  that  he  may  pay  one  so  barred,  due 
to  any  other  person ;  and  neither  the  heirs  or  other  distributees 
of   the   estate   have   any  remedy  against   him   therefor.1     It   has 

maks  the  slightest  difference  whether  the  personal  estate  is  sufficient  or  insuffi- 
cient. If  it  be  insufficient,  the  statute  gives  the  creditor  a  remedy  against  the 
real  estate,  but  that  does  not  interfere  with  the  discretion  of  the  executor." 

An  executor  may,  therefore,  at  his  discretion,  pay  debts  due  to  others,  the 
remedy  for  which  is  barred  by  lapse  of  time.  Norton  v.  Frecker,  i  Atk.  533; 
Ex  parte  Dewdney,  15  Ves.  498;  Williamson  v.  Naylor,  3  Y.  &  C.  211,  note  (a); 
Williams  on  Executors  (6th  ed.),  1664.  He  may  also  retain  assets  of  the  testa- 
tor sufficient  to  pay  such  debts  when  due  to  himself.  Stahlschmidt  v.  Lett,  1 
Sm.  &  G.  415;  Coates  v.  Coates,  33  Beav.  249;  Courtenay  v.  Williams,  3  Hare 
539.  This  is  so  even  when  the  debts  were  barred  in  the  lifetime  of  the  tesiaior. 
Hill  v.  Walker,  4  K.  &  G.  166.  And  his  right  to  payment  is  not  affected  by 
payment  of  the  testator's  effects  into  court.  In  Woodyard  v.  Polsley,  14  W. 
Va.  211,  it  was  held  that  when,  in  a  creditor's  suit  in  equity  against  an  admin- 
istrator and  the  heirs,  the  court  takes  into  its  own  hands  the  administration  of 
the  assets  by  referring  the  cause  to  a  commissioner  to  take  an  account  of  the 
debts  of  the  intestate,  the  statute  ceases  to  run  against  the  creditor,  not  a  formal 
party  to  the  bill,  the  bill  not  being  in  form  a  creditor's  bill,  from  the  dale  of 
such  decree  in  the  case;  and  that,  if  in  such  a  case  the  statute  has  not  been 
specially  pleaded  nor  relied  on  before  the  commissioner,  and  he  failed  to  recog- 
nize the  statute,  and  therefore  indorsed  no  exception  upon  the  report,  the  appel- 
late court  will  consider  the  limitation  as  out  of  the  case,  although  the  report 
upon  its  face  shows  that  some  of  the  claims  allowed  by  the  commissioner  were 
barred  by  the  statute.  Where  the  testator  in  his  will  expressly  directs  the 
executor  to  disregard  the  statute,  there  can  be  no  question  as  to  his  right  to  pay 
all  just  debts  without  reference  to  whether  they  are  barred  or  not,  even  though 
the  statute  requires  him  to  plead  the  statute  of  limitations.  Campbell  v.  Shoat- 
•well,  51  Tex.  27. 

1  Payne  v.  Pusey,  8  Bush  (Ky.)  564.  It  was  also  held  in  this  case,  and  such 
is  the  general  rule,  that,  if  he  is  unable  to  realize  his  debt  out  of  the  personal 
estate,  and  seeks  to  make  the  heirs  liable  therefor,  the  heirs  may  set  up  any 
defense  to  the  claim  which  the  intestate  could  have  set  up  including  the  statute 
of  limitations.  When  he  goes  into  a  court  of  equity,  the  administrator  stands 
like  any  other  creditor  for  the  purpose  of  making  his  debt  out  of  the  heirs,  as 
he  has  no  right  or  title  in  that  part  of  the  estate  any  more  than  any  other  cred. 
itor  of  the  estate.  In  Massachusetts,  in  Scott  v.  Hancock,  13  Mass.  762,  where 
the  period  had  expired  within  which  an  administrator  was,  under  the  statute, 
liable  to  a  suit,  no  action  having  been  brought  against  him,  the  court  refused 
a  license  to  him  to  sell  the  real  estate  to  pay  debts;  and,  generally,  if  all  the 
debts  are  barred  by  the  statute  applicable  to  administrators,  a  license  to  sell 
will  be  denied.  Wellman  v.  Lawrence,  15  Mass.  326;  Ex  parte  Allen,  id.  58. 
If  granted,  it  is  void,  as,  by  permitting  the  statutory  period  to  elapse  without 
bringing  their  action,  they  lose  all  lien  upon  the  real  estate  for  the  payment 
of  th<ir  debt.  Heath  v.  Wells,  5  Pick.  (Mass.)  140;  Thompson  v.  Brown.  162 
Mass.    17^.      And   the  levy  of  an  execution   under  a  judgment  obtained  in  an 


§  1 88.  J  EXECUTORS   AND   ADMINISTRATORS.  427 

been  held  that  if  the  surplus  of  the  personal  estate,  afterpayment 
of  the  debts  and  legacies,  is  bequeathed  to  a  residuary  legatee, 
and  several  creditors,  although  barred  by  the  statute  of  limita- 
tions, commence  actions  therefor  against  the  executor,  a  court  of 
equity  will  not,  on  his  refusal  to  plead  the  statute,  compel  him 
to  plead  it  in  favor  of  the  residuary  legatee; l  nor  can  a  residuary 
legatee  set  up  the  statute,  if  the  exectuor  refuses  to  do  so,  in  an 
action  by  a  creditor  to  recover  his  debt.2  But  this  rule  is  subject 
to  the  exception  that,  when  it  is  sought  to  charge  the  real  estate 
of  the  deceased  with  the  payment  of  debts  due  from  the  estate, 
either  the  heir,  or  a  devisee,  residuary  legatee,  or  any  person 
interested  therein,  may  interpose  the  statute.3     In  Arkansa4  and 

action  brought  after  the  statutory  period  has  elapsed,  is  void  as  against  the  heirs 
or  devisees.  Thayer  v.  Hollis,  3  Met.  (Mass.)  369.  But  this  is  not  the  rule  in 
New  York.  Thus,  in  Butler  v.  Johnson,  in  N.  Y.  204,  reversing  44  Hun,  206, 
it  was  held  that  although  a  creditor  was  not  bound,  as  the  law  stood  in  1S72,  to 
institute  proceedings  to  compel  the  sale  of  real  estate  to  pay  debts  until  after 
an  executor  or  administrator  had  rendered  an  account,  such  omission  did  not 
stop  the  running  of  the  statute  as  against  the  debt.  An  executor  or  adminis- 
trator is  bound  to  set  up  the  bar  of  the  statute  of  limitations,  and  has  no 
authority  to  allow  a  claim  so  barred,  and  as  against  an  estate  a  debt  barred  by 
the  statute  is  to  be  regarded  as  no  debt. 

1  Castleton  v.  Fanshaw,  Prec.  Chan.  99.  See  also  Ex  parte  Dewdney,  15  Ves. 
498.  A  contrary  rule  prevails  in  France  under  the  Code  Napoleon,  §  2225: 
"  Les  creanciers  ou  toute  autre  personne  ayant  interet  a  ce  que  prescription 
soit  acquise  peuvent  l'opposer  encore  que  le  debiteur  ou  le  proprietaire  y 
renonce;"  and  this  rule  certainly  is  more  reasonable  than  that  generally  adopted 
by  our  courts. 

s  Briggs  v.  Wilson,  5  De  G.  M.  &  G.  12;  Fuller  v.  Redman,  26  Beav.  614; 
Alston  v.  Trollope,  L.  R.  2  Eq.  205.  But  under  the  common  practice  and 
decree  in  England  by  administration  suit,  where  the  bill  has  been  filed  and  the 
decree  obtained  by  a  residuary  legatee,  if  a  creditor  applies  to  prove  a  debt 
barred  by  lapse  of  time,  the  executor  refused  to  plead  the  statute,  and  the  plain- 
tiff insisted  upon  doing  so,  it  is  competent  for  the  plaintiff  or  any  other  person 
interested  in  the  fund  to  take  advantage  of  the  statute  before  the  master,  not- 
withstanding the  refusal  of  the  executor  to  interpose  it.  Shewen  v.  Vander- 
horst,  1  Russ.  &  My.  347;  Phillips  v.  Beal,  32  Beav.  26;  Moodie  v.  Bannister, 
4  Drew.  432;  Fuller  v.  Redman,  26  Beav.  614.  In  New  York  it  is  held  that,  in 
taking  an  account  in  the  master's  office,  any  party  in  interest  may  interpose 
the  statute  in  bar  of  any  claim  presented.  Partridge  v.  Mitchell,  3  Edw.  (N. 
Y.)  Ch.  180.  In  Warren  v.  Poff,  4  Bradf.  (N.  Y.)  260,  it  was  held  that  heirs  and 
devisees  might  interpose  the  statute  when  it  is  sought  to  charge  the  real  estate 
with  the  payment  of  debts  of  the  estate. 

3  Partridge  v.  Mitchell,  supra;  Warren  v.  Paff,  4  Bradf.  (N.  Y.  Surr.)  260; 
Bond  v.  Smith,  2  Ala.  660. 

4  Rector  v.  Conway,  20  Ark.  79;  Rogers  v.  Wilson,  13  id.  507. 


428  STATUTES   OF   LIMITATION.  [CHAP.   XVI. 

in  Florida '  it  is  held  to  be  the  duty  of  the  administrator  or 
executor  of  an  estate  to  plead  the  statute  where  the  debt  or  claim 
was  barred  during  the  lifetime  of  the  intestate,  or  even  where  it 
is  so  stale  as  to  raise  the  presumption  of  payment  from  lapse  of 
time.2 

But  while  it  is  generally  held  that  an  executor  is  not,  unless 
otherwise  provided  by  statute,  obliged  to  plead  the  general  stat- 
ute of  limitations,  yet  he  is  in  all  cases  bound  to  set  up,  in  oppo- 
sition to  a  claim,  a  statute  which  limits  the  time  within  which  a 
claim  may  be  presented  for  payment,  or  within  which  an  action 
shall  be  commenced  against  him  in  his  official  capacity  to  enforce 
a  claim.3     But  while  the   executor  at   law   must   interpose  this 

1  Patterson  v.  Cobb,  4  Fla.  481. 

s  See  also  Briggs  v.  Wilson,  5  De  G.  M.  &  G.  12;  Beeching  v.  Morphew,  8 
Hare,  129;  Hunter  v.  Baxter,  3  Gift.  214,  for  instances  when  a  legatee,  heir, 
etc.,  may  interpose  the  statute. 

In  re  Kendrick,  107  N.  Y.  104,  it  was  held  that  the  provision  of  the  Code 
declaring  that  "  the  term  of  eighteen  months  after  the  death  of  a  person  within 
this  State,  against  whom  a  cause  of  action  exists,  is  not  a  part  of  the  time  lim- 
ited for  the  commencement  of  an  action  against  his  executor  or  administrator," 
does  not  apply  to  the  provision  declaring  that  a  judgment  shall  be  conclusively 
presumed  to  be  paid  after  twenty  years  from  the  time  the  party  recovering  it 
was  entitled  to  a  mandate  to  enforce  it,  except  as  against  one,  who,  within  the 
twenty  years  has  made  a  payment  or  acknowledged  an  indebtedness  thereon, 
and  there  is  no  provision  contained  in  the  Code  which,  under  any  circum- 
stances, extends  the  time  within  which  an  acknowledgment  or  payment  must 
be  made  in  order  to  rebut  the  otherwise  conclusive  presumption  of  payment 
after  the  lapse  of  twenty  years;  and  that,  upon  the  settlement  of  an  adminis- 
trator's accounts,  creditors  whose  claims  are  not  barred  by  the  statute  of  limita- 
tions, are  entitled  to  object  to  those  which  are,  when  the  assets  are  insufficient 
to  pay  both. 

1  Sugar  River  Bank  v.  Fairbanks,  49  N.  H.  140;  Scott  v.  Hancock,  13  Mass. 
162;  Wiggins  v.  Lovering,  9  Mo.  259;  Hodgdon  v.  White,  n  N.  H.  208;  Hall 
v.  Woodman,  49  id.  295;  Walker  v.  Cheever,  3.9  id.  420;  Amoskeag  Mfg.  Co. 
v.  Barnes,  48  id.  25;  Heath  v.  Wells,  5  Pick.  (Mass.)  140;  Lamson  v.  Schutt,  4 
Allen  (Mass.)  359,  Waltham  Bank  v.  Wright,  8  id.  122;  Emerson  v.  Thompson, 
16  Mass.  432.  In  most  of  the  States,  provision  is  made  that  claims  against  an 
estate  shall  be  presented  within  a  certain  lime  after  the  death  of  the  creditor,  or 
the  appointment  of  an  executor  or  administrator,  or  be  forever  barred;  and 
these  statutes  must  be  strictly  complied  with.  Ticknor  v,  Harris,  14  N.  II. 
272;  Badger  v.  Kelly,  10  Ala.  944;  Pickett  v.  Ford,  5  Miss.  (4  How.)  246; 
French  v.  Davis,  38  Miss.  218;  Thrash  v.  Sumvvalt,  5  Mo.  13,  Walker  v. 
ver,  39  N.  H.420;  Whitmorc  v.  Foose,  I  Den.  (N.  Y.)  159;  Scovil  v.  Scovil, 
45  Barb.  (N.  Y.)  517;  Barsalou  v.  Wright,  4  Bradf.  (N.  Y.)  164;  Williams  v. 
Ch  iffin,  :■■  Dev.  (N.  C)  L,  333:  Goodman  v.  Smith,  4  id.  450;  Hubbard  v.  Marsh. 
7  Ircd.  (N.   C.)  L.   204;    Harter  v.  Taggart,  14  Ohio  St.  122;   Estate  of  Smith,  r 


§   [88.]  EXECUTORS   AND   ADMINISTRATORS.  429 

statutory  defense,  it  was  held  in  the  case  first  cited  in  the  pre- 
ceding note  that  where  the  presentation  of  a  claim  against  an 
insolvent  estate  within  the  time  limited  is  prevented  by  the  fraud- 
ulent concealment  of  the  claim  by  the  decease,  a  court  of  equity 
may  decree  satisfaction  thereof  out  of  the  surplus,  if  any,  in  the 
hands  of  heirs  and  distributees,  if  the  bill  praying  for  such  relief 

Ashm.  (Penn.)  352;  Demmy's  Appeal,  43  Penn.  St.  155;  Atwood  v.  R.  I.  Agri- 
cultural Bank,  2  R.  I.  igi;  New  England  Bank  v.  Newport,  etc.,  Co.,  6  R.  1. 
154;  Hooper  v.  Bryant,  3  Yerg.  (Tenn.)  1;  Kelly  v.  Hooper,  id.  395;  Crawbaugh 
v.  Hart,  id.  431;  Hawkins  v.  Waiker,  4  id.  188;  Foster  v.  Maxey,  6  id.  224; 
Trott  v.  West,  9  id,  433:  1  Meigs  (Tenn.)  163;  State  Bank  v.  Vance,  9  Yerg. 
471;  Greenvvav  v.  Hunter,  1  Meigs.  (Tenn.)  74;  Rogers  v.  Winton,  2  Humph. 
(Tenn.)  178;  F.  &  M.  Bank  v.  Lealh,  11  id.  515;  State  v.  Crulcher,  2  Swan 
(Tenn.)  504;  Allen  v.  Farringion,  2  Sneed  (Tenn.)  526;  Maynard  v.  May,  2 
Coldw.  (Tenn  )  44;  Hall  v.  McCormick,  7  Tex.  269;  Perry  v.  Munger,  id.  589; 
Crosby  v.  McWillie,  ri  id.  94.;  Cobb  v.  Norwood,  id.  556;  Coles  v.  Portis, 
18  id.  155;  Jennings  :;.  Browder,  24  id.  192;  Peyton  v.  Carr,  1  Rand.  (Va.)  436; 
Mann  7>.  Flinn,  10  Leigh  (Va.)  93;  Ready  v.  Thompson,  4  S.  &  P.  (Ala.}  52; 
Jones  v.  Pharr,  3  Ala.  283;  Starke  v.  Keenan,  5  id.  590;  King  v.  Mosely,  id.  610; 
Cawthorne  v.  Weisinger,  6  id.  714;  State  Bank  v.  Gibson,  id.  814;  Badger  v. 
Kelfy,  10  id.  944.  See  McHenry  v.  Wells,  28  id.  451;  McDougald  v.  Dawson, 
30  id.  553;  Bank  of  Montgomery  v.  Plannett,  37  id.  222;  Walker  v.  Byers,  14  Ark. 
246;  State  Bank  v.  Walker,  id.  234;  Biscoe  v.  Sandefur,  id.  568;  Bennett  v.  Daw- 
son, 15  id.  412;  Hill  v.  State,  23  id.  604;  Danglada  v.  De  la  Guerra,  10  Cal. 
386;  Fanning  v.  Coit,  Kirby  (Conn.)  423;  Rowan  v.  Kirkpatrick,  14  III.  1; 
Ryan  v.  Jones,  15  id.  1;  Stillman  v.  Young,  16  id.  318;  Peacock  v.  Haven,  22 
id.  23;  Wingate  v.  Pool,  25  id.  118;  Mason  v.  Tiffany,  45  id.  392;  Beard  v.  Pres- 
byterian Church,  15  Ind.  490;  Preston  v.  Day,  19  Iowa,  127;  Goodrich  71. 
Conrad,  24  id.  254;  McPhetres  v.  Halley,  32  Me.  72;  Pettengill  v.  Patterson 
39  id.  498;  Thurston  v.  Lowder,  47  id.  72;  Rawlings  v.  Adams,  7  Md.  26: 
Bemis  v.  Bemis,  13  Gray  (Mass.)  559.  Unless  the  statute  gives  the  court  power 
to  excuse  delay,  no  remedy  exists  where  the  party  has  neglected  to  present  his 
claim,  whatever  may  have  been  the  reason  for  delay.  Sanford  v.  Wicks,  3  Ala. 
369;  Bigger  v.  Hutchings,  2  Stew.  (Ala)  445.  These  statutes,  however,  do  not 
apply  to  strictly  equitable  claims,  as  mortgages,  Bradley  v.  Norris,  3  Vt.  369; 
Austin  v.  Jackson,  10  id.  267;  Locke  v.  Palmer,  26  Ala  312;.  McMurray  v. 
Hopper,  43  Penn.  St.  468;  Allen  v.  Moer,  16  Iowa,  307;  Fisher  v.  Mossman,  11 
Ohio  St.  42;  Menard  v.  Marks,  2  111.  25;  or  to  compel  the  application  of  trust 
funds,  Pope  v.  Boyd,  22  Ark.  535;  Stark  v.  Hunton,  3  N.  J.  Eq.  300;  or  to 
claims  which  originate  after  the  period  named,  Griswold  v.  Bingham,  6  Conn. 
258;  Hawley  v.  Botsford,  27  id.  80;  Chambers  r.  Smith,  23  Mo.  174;  or  to  a 
claim  for  the  recovery  of  specific  property,  Andrews  v.  Huckabee.  30  Ala.  143; 
Sims  v.  Canfield,  2  id.  555;  or  where  administration  is  suspended  because  the 
administrator  fails  to  qualify,  Morgan  v.  Dodge,  44  N.  H.  255;  Abercrombie  v. 
Sheldon  8  Allen  (Mass.)  532;  nor  to  a  claim  in  the  Orphan's  Court.  Yingling 
v.  Hesson,  16  Md.  112;  Glenn  v.  Hebb.  17  id.  260.  Nor  do  those  statutes 
attach  until  a  claim  is  due;  therefore,  where  the  statute  provides  that  all  claims 


430  STATUTES   OF    LIMITATION.  [CHAiP.   XVI. 

is  filed  promptly  after  the  discovery  of  the  claim. :  But  a  gen- 
eral request  by  the  executor  to  the  creditors  of  the  estate  for 
delay,  from  time  to  time,  or  his  assurance  to  them  that  the  debt 
is  good,  will  not,  unless  otherwise  provided  in  the  statute,  save 
the  operation  of  the  statute  limiting  the  presentation  or  enforce- 
ment of  claims;  and  if  he  pays  such  claims  after  they  are  barred 
under  such  statute,  he  is  guilty  of  devastavit.2  If  the  executor 
neglects  to  plead  the  statute  limiting  the  time  within  which 
claims  may  be  presented  or  sued,  the  judgment  will  not  be  bind- 
ing upon  the  estate,  and  an  execution  issuing  thereon,  levied 
upon  the  real  estate  of  the  deceased,  is  void  as  to  all  persons 
except  the  executor  or  administrator  who  permitted  it  to  issue;3 
and  money  paid  by  him  in  satisfaction  of  such  a  judgment  will 
not  be  allowed  to  him  in  his  final  account.4  Thus,  the  executor 
or  administrator  is  absolutely  bound  to  take  advantage  of  the 
statutes  referred  to  specially  intended  for  the  quieting  of  claims 
against  estates,  although  he  is  invested  with  an  unqualified  dis- 
cretion as  to  whether  he  will  or  not  interpose  the  bar  of  the  gen- 
eral statute  of  limitations;  and  while  he  may  obtain  a  license  to 

must  be  presented  or  sued  within  one  year  after  they  accrue,  and  a  claim  does 
not  become  due  until  two  years  after  an  administrator  is  appointed,  the  cred- 
itor has  a  year  after  the  claim  becomes  due  in  which  to  present  it.  Neil  v. 
Cunningham,  2  Port.  (Ala.)  171. 

1  See  Sugar  River  Bank  v.  Fairbanks,  49  N.  H.  140.  In  re  Haxtun,  102  N. 
Y.  157,  reversing  33  Hun,  364,  it  was  held  that  the  fact  that  a  claim  against 
the  estate  of  a  deceased  person  has  been  presented  to  and  rejected  by  the 
executor  or  administrator,  does  not  deprive  the  surrogate  of  jurisdiction  to 
determine  the  validity  of  the  claim  in  proceedings  instituted  under  the  Code, 
upon  petition  of  the  creditor  to  sell  the  real  estate  of  the  deceased.  The  surro- 
gate may,  in  such  a  proceeding,  determine  the  validity  of  all  claims  upon  the 
estate  which  are  not  already  liens  upon  the  real  property,  as  well  that  of  the 
petitioning  creditor  as  of  other  creditors. 

The  six  months'  limitation  within  which  an  action  must  be  brought  against 
an  executor  or  administrator  upon  a  claim  rejected  by  him  does  not  apply  to 
a  claim  presented  and  rejected  before  the  amendment  of  the  statute  of  1882 
(Chap.  399.  Laws  of  1882),  where  no  notice  to  creditors  was  ever  published  by 
the  executor  or  administrator. 

*  Langham  v.  Baker,  5  Baxter  (Tenn.)  701.  But  it  seems  that  a  request 
made  by  an  administrator  to  creditors  of  the  estate,  to  forbear  until  he  can 
collect  money  enough  to  pay,  is  a  special  request,  sufficiently  definite  to  suspend 
the  operation  of  the  general  statute  of  limitations.  McKizzack  v.  Smith,  I 
Sneed  (Tenn.)  470. 

3  Thayer  v.  Mollis,  supra;  Amoskeag  Mfg.  Co.  v.  Barnes,  supra. 

*  Siillman  v.  Young,  16  111.  318;    llodgdon  v.  White,  snpra. 


§   189.]  EXECUTORS   AND   ADMINISTRATORS.  43 1 

sell  real  estate  to  pay  debts  barred  by  the  general  statute,1  unless 
it  appears  that  they  are  so  stale  as  to  raise  a  presumption  of  pay- 
ment,2 yet  a  license  will  not  be  granted  to  sell  real  estate,  when 
no  claims  have  been  presented  against  the  estate,  or  sued  within 
the  time  prescribed  by  law,  because  in  that  case  there  are  no  debts 
to  be  paid,8  and  a  license,  if  granted,  would  be  void,  upon  the 
ground  that  the  order  is  issued  by  the  court  without  any  actual 
jurisdiction  over  the  subject-matter  to  which  it  relates,  because 
there  are  no  debts,  and,  therefore,  there  is  no  authority  on  the 
part  of  the  court  under  the  statute  to  issue  the  order.4  These 
special  statutes  of  limitation  do  not  apply  to  an  offset  set  up  by 
a  person  who  is  sued  by  an  administrator  to  recover  a  debt  due 
from  him  to  the  estate.5 

SEC.  189.  Effect  of  Statute  when  Creditor  is  Executor  or 
Administrator ;  when  Debter  is  Executor,  &c.  —  The  question  of 
the  statute  does  not  arise  where  a  legatee  is  also  an  executor  of 
the  testator,  so  that  the  same  hand  gives  and  receives.6  Thus, 
where  such  a  condition  existed,  Lord  Hatherley,  V.  C,  said:7 
"  Having  the  whole  of  the  testator's  assets  in  his  hands,  he  could 
not  sue  himself,  the  legacy  was,  therefore,  either  at  home,  that 

*  Hodgdon  v.  While,  10  N.  H.  208. 

s  Scott  v.  Hancock,  13  Mass.  162;  Mooers  v.  White,  6  Johns.  (N.  Y.)  Ch.  360; 
Hodgdon  z>.  White,  supra. 

*  Tarbell  v.  Parker,  106  Mass.  347;  Hall  v.  Woodman,  49  N.  H.  304;  Lamson 
v.  Schutt,  4  Allen  (Mass.)  359;  Ferguson  v.  Scott,  49  Miss.  500;  Robinson  v. 
Hodge,  117  Mass.  222;  Nowell  v.  Nowell,  8  Me.  220. 

4  Tarbell  v.  Parker,  supra;  Hudson  v.  Hulbert,  15  Pick.  (Mass.)  425;  Thayer 
v.  Hollis,  supra;  Lamson  v.  Schutt,  supra;  Heath  v.  Wells,  5  Pick.  (Mass.) 
140. 

6  Thus,  where  an  administrator  sued  a  bank  for  money  deposited  by  his  tes- 
tator, and  for  dividends  on  stock  of  the  bank  owned  by  him,  and  the  bank  set 
up  an  offset  thereto,  to  which  the  administrator  objected  on  the  ground  that 
the  claim  was  not  presented  to  Ihe  probate  court  for  allowance  within  the  time 
prescribed  by  statute,  and  consequently  was  barred,  the  court  held  that  the 
objection  was  not  well  grounded,  because  the  statute  only  contemplated  cases 
where  the  creditor  in  the  first  instance  brought  his  claim  against  the  estate, 
and  had  no  application  to  suits  by  the  administrator  against  a  creditor,  where 
the  demand  of  the  latter  was  set  up  as  a  counterclaim,  and  that  in  such  a  case 
the  only  statute  that  could  be  set  up  against  the  counterclaim  or  set-off  was  the 
general  statute  of  limitations.     Lay  v.  Mechanics'  Bank,  61  Mo.  72. 

*  Binns  v.  Nichols,  L.  R.  2  Eq.  256;  Prior  v.  Horniblow,  2  Y.  &  C.  Exch.  200; 
Adams  v.  Barry,  2  Coll.  285. 

1  Binns  v.  Nichols,  supra. 


432  •  STATUTES    OF    LIMITATION.  [CHAP.    XVI. 

is  to  say,  it  would  have  been  satisfied  if  there  had  been  assets,  or 
it  was  kept  alive,  because  in  ordinary  circumstances  a  bill  might 
have  been  filed  to  keep  it  alive;  but  this  gentleman  (the  adminis- 
trator) could  not  have  taken  so  absurd  a  step  as  to  file  a  bill 
against  himself  for  the  purpose  of  making  himself  pay  his  own 
legacy."  This  reasoing  does  not  in  terms,  but  in  effect  would 
seem  to,  apply  to  a  case  where  the  executor  is  an  ordinary  cred- 
itor of  his  testator,  and,  as  such  is  the  rule  where  the  debtor  is 
administrator  to  the  creditor,  it  would  seem  to%  hold  good  in  the 
converse  case,  (a)  Notwithstanding  the  almost  universal  rule, 
that  when  time  has  once  commenced  to  run  in  these  cases  no 
alteration  of  circumstances  in  the  way  of  any  disability  on  the  part 
of  plaintiff  or  defendant  will  prevent  it  continuing  to  run,  yet  in 
cases  where  the  debtor  takes  out  administration  to  the  creditor, 
time  will  not  run  in  the  debtor's  favor,  even  though  it  has  com- 
menced to  run  previously  to  his  administration.  It  appears 
that  where  administration  of  the  goods  of  a  creditor  is  given  to 
a  debtor,  this,  being  done  by  act  of  law,  is  not  an  extinction  of 
the  debt,  but  a  suspension  of  the  remedy}  And  where  a  debtor 
was  appointed  one  of  several  executors  of  this  creditor's  will,  but 
did  not  prove  his  debt  until  it  was  already  barred  by  lapse  of 
time,  yet  it  was  held  that  the  debt  was  revived  by  his  subse- 
quently proving  the  will,  inasmuch  as  that  proof  related  back  to 
the  testator's  death,  and  he  was  ordered  to  account  for  the  sum 
owing  with  interest.2     Yet  an  executor  or  administrator  will  have 

1  Seagram  v.  Knight,  L.  R.  2  Ch.  628;  Needham's  Case,  8  Coke,  135  a;  Wank- 
ford  v.  Wankford,  1  Salk.  299. 

5   Ingle  v.  Richards  (No.  2),  28  Beav.  366. 

In  Hopper  v.  Hopper,  125  N.  Y.  400,  53  Hun,  394,  it  was  held  that  by  the 
phrase  "  foreign  executor,"  the  mere  non-residence  of  the  individual  holding 
the  office  is  not  referred  to,  but  the  foreign  origin  of  the  representative  char- 
acter; that  is,  the  sole  product  of  the  foreign  law,  and  depending  upon  it  for 
existence,  cannot  pass  beyond  the  jurisdiction  of  its  origin;  but  that  where 
ancillary  letters  testamentary  have  been  issued  to  a  foreign  executor,  as  pre- 
scribed by  the  Code,  he  thereby  acquires  an  official  and  representative  character 
• cutor  here,  and  so  may  sue  or  be  sued  in  his  representative  character  in 
this  State;  and  that  an  action  may  be  brought  here  against  an  ancillary 
executor,  as  such,  by  a  non-iesident,  at  least  when  the  cause  of  action  arose  in 
this  State. 

(<i)  In  Maryland,  the  statute  of  limi-  against    his  estate,   as    he   cannot   sue 

t  it  ions  of    [815,  which    is  still   in  force  himself  at  law.     Glover  v.  Patten,  165 

in  the    District  of  Columbia,  does  U.  S.  394,  405. 
not    apply   to   a  claim    by   an    executoi 


§  I90.]  EXECUTORS   AND    ADMINISTRATORS.  433 

no  right,  under  any  circumstances,  to  pay  a  debt  or  charge  which 
has  absolutely  become  extinguished  by  statute} 

SEC.  190.  Acknowledgment  by  an  Executor. — In  England' 
and  in  some  of  the  States  in  this  country3  it  is  held  that  an 
acknowledgment  of  an  executor  takes  a  debt  due  from  the  estate 
out  of  the  statute.  But  generally  in  this  country  the  rule  is  that 
an  acknowledgment  by  an  executor  does  not  remove  the  statute 
bar  after  it  has  once  attached  to  the  debt,  although  it  may  be 
sufficient  to  suspend  the  operation  of  the  statute  if  made  before 
the  bar  is  complete; 4  and   this  doctrine   is  certainly   consistent 

1  Lowis  v.  Rumney,  L.  R.  4  Eq.  451. 

2  Browning  v.  Paris,  5  M.  &  W.  117;  Toft  ;•.  Stephenson,  1  De  G.  M.  G.  28, 
41;   Briggs  v.  Wilson,  5  id.  12;   Fordham  v.  Wallis,  10  Hare,  217. 

3  Semmes  v.  Magruder,  10  Md.  242;  Northern  v.  Wilkins,  12  B.  Mon.  (Ky.) 
40S;  Walker  7.  Cruikshank,  23  La.  An.  252;  Hall  v.  Darrington,  9  Ala.  502; 
Griffin  v.  The  Justices,  17  Ga.  96;  Tazewell  v.  Whittle,  13  Gratt.  (Va.)  329; 
Quynn  v.  Carroll,  10  Md.  197;  Brewster  v.  Brewster,  52  N.  H.  52;  Hodgdon  v. 
White,  11  id.  211;  Townes  v.  Ferguson,  20  Ala.  147;  Farmers'  &  Mechanics' 
Bank  v.  Leath,  11  Humph.  (Tenn.)  615;  Buswell  v.  Roby,  3  N.  H.  467;  Mc- 
Whurier  v.  Johnson,  10  Humph.  (Tenn.)  209;  Deyo  v,  Jones,  19  Wend.  (N.  Y.) 
491  Buchanan  v.  Buchanan,  4  Strobh.  (S.  C.)  63;  Chambers  v.  Fennemore,  4 
Harr.  (Del.)  368;  Shreve  v.  Joyce,  36  N.  J.  L.  44;  McCann  v.  Sloan,  25  Md. 
575;  Head  v.  Mannin,  5  J.  J.  Mar.  (Ky.)  255;  Hard  v.  Lee,  2  Monr.  (Ky.)  131; 
Johnson  v.  Beardslee,  15  Johns.  (N.  Y.)  3;   Emerson  v.  Thompson,  16  Mass.  429. 

4  Forney  v.  Benedict,  5  Penn.  St.  225;  Sanders  v.  Robertson,  23  Miss.  389; 
Moore  v.  Hardison,  10  Tex.  467;  Haselden  v.  Whitesides,  2  Strobh.  (S.  C.) 
353;  Miller  v.  Dorsey,  9  Mi.  317;  Clark  v.  Maguire,  35  Penn.  St.  259;  Heath 
v.  Grenell,  61  Barb.  (N  Y.)  190;  Riser  v.  Snoddy,  7  Ind.  442;  Moore  v.  Hille- 
brant,  14  Tex.  312;  Peck  v.  Botsford,  7  Conn.  172;  Crandall  v.  Gallup,  12  id. 
365;  Thompson  v.  Peters.  12  Wheat.  (U.  S.)  565;  Richmond,  Petitioner,  2  Pick. 
(Mass.)  567;  Manson  v.  Felton,  13  id.  206;  Foster  v.  Starkey,  12  Cush.  (Mass.) 
324",  McLaren  v.  McMartin,  3b  N.  Y.  88;  Huntington  v.  Babbitt.  46  Miss.  528 
Seig  v.  Acord,  21  Gratt.  (Va.)  365.  In  Fritz  v.  Thomas,  1  WThart.  (Penn.)  66, 
Gibson.  J.,  laid  down  the  doctrine  as  stated  in  the  text,  and  said:  "  The  con- 
cession that  the  plaintiff's  claim  is  just,  and  the  promise  to  see  what  could  be 
done  for  him,  would  doubtless  be  sufficient  to  maintain  an  action,  if  the  con- 
sideration were  the  defendant's  own  debt.  But  can  any  acknowledgment  by 
an  executor  or  administrator  preclude  him  from  pleading  the  statute  of  limita- 
tions to  a  count  on  the  original  cause  of  action?  In  Jones  v.  Moore,  5  Binn. 
(Penn  )  573,  and  subsequently  in  Bailey  v.  Bailey,  14  S.  &  R.  (Penn.)  195,  and 
Scull  v.  Wallace,  15  id.  231,  it  was  doubtless  taken  for  granted  that  a  recovery 
may  be  had  against  a  plea  of  the  statute,  on  proof  of  an  acknowledgment  by 
the  personal  representative.  But  it  is  to  be  remarked  that  the  point  has  not 
been  adjudged,  and  that  no  recovery  has  in  fact  been  had;  and  the  inquiry  is 
consequently  not  clogged  by  the  authority  of  a  precedent."  *  *  *  Why 
should  we  not  finish  what  was  so  well  begun  in  Jones  v.  Moore,  by  making  the 

[stats,  of  lim.  — 28] 


434  STATUTES   OF   LIMITATION.  [CHAP.    XVI. 

with  the  present  theory  of  acknowledgment,  as,  upon  principle, 

law  of  the  subject  consistent  in  all  its  parts,  and  giving  to  the  statute  entire 
effect,  both  in  substance  and  in  form?  To  do  so  would  involve  no  violation  of 
that  case  as  a  precedent,  for,  as  I  have  said,  the  point  was  not  adjudged;  and 
the  step  remaining  to  be  taken  in  the  progress  of  departure  from  the  doctrine 
of  revival  is  no  grealer  than  what  was  taken  there.  Indeed,  there  is  no  course 
open  10  us  but  to  follow  the  principle  out,  or  abandon  il  altogether;  for,  to  be 
consistent,  we  must  either  return  to  the  doctrine  of  revival  without  qualifica- 
tion, or  maintain  that  an  action  on  his  own  promise  lies  not  against  an  executor 
or  administrator  in  his  official  character.  And  for  saying  it  does  not,  we  have 
the  authority  of  Thompson  v.  Peters,  12  Wheat.  (U.  S.)  565,  and  Peck  v.  Bots- 
ford,  7  Conn.  178,  in  both  of  which  the  point  was  direclly  ruled." 

In  a  subsequent  case  in  that  Slate  it  was  held  that  an  executor's  promise  to 
pay  a  debt  of  the  testator  will  not  take  it  out  of  the  statute,  and  the  court  rely 
upon  Fritz  v.  Thomas,  supra,  to  support  the  ground  that,  as  the  old  promise 
■vas  not  revived,  but  superseded  by  the  new  one,  the  consideration  of  a  moral 
obligation  would  be  wanting  to  make  the  executor  personally  liable.  Reynolds 
v.  Hamilton,  7  Watts  (Penn.)  420.  An  admission  by  one  co-executor  of  a  debt 
due  from  his  testator  is  nowhere  receivable  as  evidence  in  a  suit  for  the  debt, 
against  another  co-executor,  to  establish  the  origin  of  the  demand,  as  to  make 
the  other  personally  liable;  though  otherwise  to  take  il  out  of  the  statute,  if 
the  original  demand  against  the  testator  is  aliunde  established.  Hammond  v. 
Huntley,  4  Cow.  (N.  Y)  493;  Deyo  v.  Jones,  19  Wend.  (N.  Y.)  491.  In  Wil- 
liams on  Executors,  1889  (7th  ed.),  it  is  said:  "  Where,  in  assumpsit  by  an 
executor,  in  which  all  the  promises  were  laid  to  be  made  to  the  testator  in  h!s 
lifetime,  the  defendant  pleaded  that  he  did  not  promise  within  six  years  next 
before  the  obtaining  of  the  original  writ  of  the  plaintiff,  and  the  plaintiff  replied 
that  the  original  was  sued  on  such  a  day,  and  that  within  six  years  before  the 
day  of  obtaining  thereof,  that  is  to  say,  on  such  a  day,  letters  testamentary 
were  granted  to  him,  by  which  the  plaintiff's  action  accrued  to  him  within  six 
years;  this  replication  was  held  bad;  because  the  time  of  limitation  must  be 
computed  from  the  time  when  the  action  first  accrued  to  the  testator,  and  not 
from  the  time  of  proving  the  will;  for  that  gave  no  new  cause  of  action,  and 
therefore  the  time  of  proving  the  will  is  perfectly  immaterial.  Hickman  v. 
Walker,  Willes,  27;  note  to  Hodsden  v.  Harridge,  2  Saund.  64;  Hapgood 
v.  Southgate,  21  Vt.  584;  Warren  v.  Paff,  4  Bradf.  Surr.  (N.  Y.)  260;  Conant  v. 
Hitl,  12  Vt.  285;  Boyce  v.  Foole,  19  Wis.  199. 

"  But  where  to  an  action  by  an  administrator  for  money  had  and  ieceived  to 
his  use  by  the  defendant,  who  had  received  the  intestate's  money  after  his 
death,  six  years  and  upwards  before  the  commencement  of  the  action,  but 
within  six  years  after  letters  of  administration  granted  to  the  plaintiff  the 
defendant  pleaded  the  statute  of  limitations,  and  the  plaintiff  replied  the  special 
matter  above  mentioned;  it  was  held,  upon  demurrer,  that  the  statute  was  no 
Jj.ir,  because  this  was  not  a  cause  of  action  in  the  intestate,  the  money  having 
been  received  after  his  death,  and  the  plaintiff's  title  commenced  by  taking  out 

I  iirs  of  administration,  before  which   time  no  cause  of  action  accrued  to  him. 
Cary    v.    Stephenson,    2   Salk.    421.     [See   Stanford's   Case,  cited  Cro.  Jac.  61; 

II  lii    ford   v.    Elliott,  9  Leigh  (Va.)  792.      In    Dunning  v.   Ocean   Bank,  6  Lans. 
(N.  Y.)  296,  the  court  say,  '  If  there  was  no  person  or  party  in  being  at  the  time 


§  I90.J  EXECUTORS   AND    ADMINISTRATORS.  435 

a  new  promise  by  an  executor  is  invalid  because  it  lacks  even  a 

the  monev  in  question  came  to  the  possession  of  the  defendant,  who  could  law- 
fully demand  and  receive  the  same,  and  in  whom  a  right  for  the  recovery  thereof 
vested,  or  since,  *  *  *  the  action  is  not  barred.  This  is  well  settled,  until 
there  is  some  one  entitled  to  demand  and  take,  there  is  no  obligation  to  pay. 
and  no  promise  can  be  implied.  The  statute  does  not  begin  to  operate  until 
then.'  Davis  v.  Gare,  6  N.  Y.  124;  Bucklin  v.  Ford,  5  Barb.  (N.  Y.)  395; 
Vaughn  v.  Mohawk  Ins.  Co.,  13  Wend.  (N.  Y.)  267;  Richards  v.  Richards,  2  B. 
&  Aid.  447;  Piggott  v.  Rush,  4  Ad.  &  El.  912,  Wilt  v.  Elmore,  2  Bailey  (S.  C.) 
595;  Fergusson  v.  Fyffe,  8  CI.  &  F.  121;  Johnston  v.  Humphrys,  12  S.  &  R. 
(Penn.)  395;  Geiger  v.  Brown,  4  McCord  (S.  C.)  418;  Fishwick  v.  Sewall,  4  H. 
&  J.  (Md.)  393;  Jones  v.  Brodie,  3  Mon.  (Ky.)  354;  Grubb  v.  Clayton,  2  Hayw. 
(N.  C.)  378.]  So  where  an  action  was  brought  by  an  administrator  against  the 
acceptors  of  bills  of  exchange  payable  to  the  intestale,  and  accepted  after  his 
death,  but  before  the  grant  of  letters  of  adminisration,  it  was  held  that  the 
statute  ran  only  from  the  grant  of  the  letters.  Murray  v.  East  India  Company, 
5  B.  &  Aid.  204;  Pratt  v.  Swaine,  8  B.  &  C.  285;  s.  c.  r  M.  &  Ry.  351;  Perry 
v.  Jenkins,  1  My.  &  Cr.  11S.  [In  many  of  the  States,  express  provision  is  now 
made  by  statute  as  to  the  time  when  the  statute  shall  attach  to  a  claim  in  favor 
of  a  deceased  creditor,  and  in  some  instances  the  statute  is  saved  where  it  had 
run  only  thirty  or  a  certain  other  specified  number  of  days  before  the  creditor's 
death.] 

"  It  must  be  observed  that  where,  in  assumpsit  by  an  executor,  on  a  contract 
made  with  his  testator,  all  the  promises  in  the  declaration  were  laid  to  be  made 
to  the  testator,  and  the  defendant  pleaded  the  statute  of  limitations,  the  plaintiff 
could  not  in  his  replication  set  forth  a  promise  made  to  himself  within  six 
years,  without  being  guilty  of  a  departure,  any  more  than  he  could  in  such 
case  give  evidence  of  a  promise  made  to  himself  within  six  years  upon  an  issue 
joined  on  the  plea  of  the  statute  of  limitations.  Hickman  v.  Walker,  Willes, 
29;  Dean  v.  Crane,  6  Mod.  309;  Executors  of  the  Duke  of  Marlborough  v. 
Widmore,  2  Stra.  890;  2  Saund.  63  /.  However,  in  Heylin  v.  Hastings,  Carth. 
471,  it  is  said  to  have  been  admitted  that  a  promise  made  to  an  executor  is 
sufficient  to  prove  the  issue  of  assumpsit  to  the  testator  within  six  years; 
because  the  promise  does  not  give  any  new  cause  of  action,  but  onlv  revives 
the  old  cause,  and  is  of  no  other  use  but  to  prevent  the  bar  by  the  statute  of 
limitations.  But  this  seems  not  to  be  well  founded;  and  it  has  since  been 
determined,  that  evidence  of  an  acknowledgment  by  the  defendant  within  six 
years  of  an  old  existing  debt,  of  above  six  years'  standing,  due  to  the  plaintiff's 
intestate,  but  which  acknowledgment  was  made  after  the  intestate's  death, 
will  not  support  a  count  by  the  administrator,  laying  the  promise  to  be  made  to 
his  intestate.  Sarell  v.  Wine,  3  East,  409:  s.  p.  Ward  v.  Hunter,  6  Taunt.  210; 
s.  p.  by  Bayley,  J.,  in  Short  v.  M'Carthy,  3  B.  &  Aid.  626.  [This  rule  has 
been  adopted  in  Pennsylvania,  Jones  v.  Moore,  5  Binn.  (Penn.)  573;  but  not 
in  New  Hampshire,  Buswell  v.  Roby,  3  N.  H.  467;  nor  Massachusetts,  Baxter 
v.  Penniman,  8  Mass.  134.]  Therefore,  where  it  was  necessary  to  rely  on  an 
acknowledgment,  made  since  the  death  of  the  testatcr,  to  bar  the  statute,  counts 
were  required  in  the  declaration  laying  promises  to  the  plaintiff  as  executor. 
As  to  what  is  sufficient  evidence  of  an  account  stated  with  the  plaintiff  as 
executor,  see  Purdon  v.  Purdon,  10  M.  &  W.  562. 


436  STATUTES   OF    LIMITATION.  [CHAP.   XVI. 

moral  consideration  to  support  it.      But,  while  an  acknowledgment 

"  Accordingly,  if  an  executor  brought  an  action  on  a  bill  or  note,  and 
intended  to  rely  on  an  acknowledgment  or  promise  made  to  himself  in  order  to 
bar  the  statute,  he  had  to  state  in  his  declaration  the  making  of  the  bill  or  note, 
and  must  then  have  proceeded  to  aver  that,  after  the  death  of  his  testator  01 
intestate,  the  defendant  promised  him  (the  plaintiff)  as  executor  or  adminis- 
trator to  pay  him.  And  where  the  declaration  was  so  framed,  such  promises 
might  have  been  denied  by  a  plea  of  non  assumpsit.  For  the  mere  production 
and  proof  of  the  note  would  not  prove  the  promise  as  made  to  the  executors, 
as  it  would  if  the  promise  were  laid  as  made  to  the  testators.  The  right  of 
action  indeed  is  transferred  to  the  executor,  but  no  promise  is  implied  by  law 
to  pay  him;  otherwise  the  statute  of  limitations  would  run  from  the  death  of 
the  payee,  and  not  from  the  time  of  the  note  becoming  due.  In  ordei,  therefore, 
lo  support  the  action,  there  must  be  an  express  promise  to  the  executor,  thai 
is  to  say,  an  express  promise  as  contradistinguished  from  a  promise  contained 
in  the  note  itself,  or  anything  implied  out  of  it;  and  the  cause  of  action  is  the 
existence  of  the  note,  with  the  express  promise  to  the  executor  to  pay  the 
amount  of  it;  whereas  the  rule  is  confined  to  cases  where  the  action  is  only  on 
the  note.  Timmis  v.  Piatt,  2  M.  &  W.  720;  Gilbert  v.  Piatt,  5  Dowl.  748;  Rol- 
leston  v.  Dixon,  2  Dowl.  &  L.  892.  The  effect  of  the  plea  of  non  assumpsit  is 
in  such  a  case  to  admit  that  the  bill  or  note  was  signed  by  the  defendant,  but 
to  deny  that  he  made  any  promise  to  the  executor. 

"  In  Clark  v.  Hooper,  10  Bing.  840,  4  M.  &  Sc.  353,  payment  of  interest  on  a 
promissory  note  to  an  administrator  who  had  omitted  to  take  out  administra- 
tion in  the  diocese  in  which  the  note  was  a  bonum  notabile,  was  held  a  suffi- 
cient acknowledgment  of  the  debt  to  bar  the  statute,  (a) 

"  If  an  executor  sues  in  assumpsit,  within  a  year  after  the  death  of  his  tes- 
tator, the  six  years  not  being  elapsed  before,  though  they  expire  within  that 
period,  yet  it  is  held  to  be  sufficient  to  take  the  case  out  of  the  statute.  Tidd, 
28  (gth  ed.),  citing  Cawer  v.  James,  Bull.  N.  P.  150.  But  see  s.  c.  reported  in 
Willes,  255  nomine  Knrver  v.  James.  But  the  contrary  was  held  in  Penny  v. 
Brice,  18  C.  B.  N.  S.  393. 

"  Where  a  party  brings  an  action  before  the  expiration  of  six  years,  and  dies 

before  judgment,  the  six  years  being  then  expired,  it  has  been  held  that  his 

executor  or  administrator  may,  within  the  equity  of  the  fourth  section  of  the 

statute  of  limitations  (21  Jac.  I.,  c.   16),  bring  a  new  action,  Matthews  v.  Phil. 

lips,  2  Salk.  425;   Kinsey  v.  Heyward,  1  Lutw.  260;   provided  he  does  it  recently, 

or   within   a   reasonable   time.     No   precise   time   is   fixe  i   as  to  what  shall  be 

deemed  a  reasonable  time;  but  it  should  seem  that  that  the  statute  is  the  best 

guide   upon  the  subject,  and  as  that  provides  that  a   new  action,  in  the  cases 

enumerated  in  it,  must  be  commenced  within  a  year   so  an  executor  ought  also 

to  bring  a  new  action   within  that  period.     2  Saund.  64,   note  to  Hodsden  v. 

Harridge.     [In  many  of  the  States  of  this  country  express  provision  is  made  to 

the  statute  to  a  party  who  has  brought  this  action  in  season,  but  which  has 

1    by  reason  of  some  technical  or  other  ground  other  than   the  voluntary 

<>f   the  party,  and  the  period  within  which  a  fresh  action  may  be  brought  is 

Upon  this  decision,  see   Stamford,  S.  &  B.  Banking  Co.  v.  Smith,  [1892]    1 
Q.  B  103,  n.. 


§  190.]  EXECUTORS   AND   ADMINISTRATORS.  43/ 

by  an  executor  will  not  take  a  debt  against  the  estate  out  of  the 
statute,  an   acknowledgment   made   to   him   by  a   debtor   to  the 

genenlly  fixed.  See  Appendix. 1  In  Kinsey  v.  Heyward,  1  Ld.  Raym.  434,  a 
year  is  said  to  be  a  reasonable  time,  and  the  Court  of  King's  Bench  appears  to 
be  of  this  opinion  in  Wilcox  v.  Huggins,  2  Str.  907,  Fiizg.  170,  289,  where  it  is 
said  that  the  most  that  had  ever  been  allowed  was  a  year,  and  that  within  the 
eqaity  of  ihe  proviso  in  the  statute,  which  gives  the  plaintiff  a  year  to  com- 
mence a  new  action,  where  the  judgment  is  arrested  or  reversed;  and  that  they 
would  not  go  a  moment  further,  for  it  would  let  in  all  the  inconveniences 
which  the  statute  was  made  to  avoid.  Indeed,  if  the  executor  had  been 
retarded  Dy  suits  about  the  will  or  administration,  and  had  shown  that  in 
pleading  it  would  have  been  otherwise,  because  the  neglect  would  then 
have  been  accounted  for.  And  Lee,  J.,  said:  '  I  think  what  is  or  is  not 
a  recent  prosecution  in  a  case  of  this  nature  is  to  be  determined  by  the 
discretion  of  the  court  from  the  circumstances  of  the  case;  but,  generally, 
the  year  in  the  statute  is  a  good  direction.'  However,  in  Lethbridge  v. 
Chapman,  15  Vin.  Abr.  103,  in  margine,  the  action  was  allowed  to  be  brought 
within  fourteen  months  after  the  testator's  death,  though  no  reason  was  assigned 
for  it.  Upon  the  whole,  therefore,  it  was  deemed  prudent  for  the  executor  to 
bring  a  new  action  as  soon  as  he  possibly  could  after  the  death  of  his  testator, 
and  at  all  events  not  to  delay  it  beyond  a  year.  2  Saund.  64  b,  note.  But  in 
Curlewis  v.  Mornington,  7  E.  &  B.  283.  it  was  expressly  held  that  the  executor 
was  not  bound  to  the  year,  if  under  the  circumstances  he  can  fairly  be  said  to 
have  used  due  diligence. 

"Again,  if  an  executor  brought  assumpsit,  but  died  before  judgment  and  the 
six  years  run,  his  executor  might,  notwithstanding,  bting  a  fresh  action,  so  as 
he  brought  it  in  a  reasonable  time,  which  is  to  be  decided  at  the  discretion  of 
the  justices  upon  the  circumstances  of  the  case.     Bull,  N.  P.  150  a. 

"  The  principle  of  these  cases,  according  to  the  judgment  of  Lord  Chief 
Justice  Tieby,  in  the  case  of  Kinsey  v.  Heyward,  is,  that  when  once  the  proviso 
in  the  statute  of  limitations  is  complied  with  by  the  commencement  of  an 
action  within  due  time,  the  party  is  out  of  the  purview  of  the  act,  and  set  at 
liberty  out  of  the  restraint  of  the  said  statute.  But  the  true  ground  of  these 
decisions  appears  to  be  that  they  proceed  upon  the  equity  of  the  fourth  section 
of  the  statute,  and  that  the  courts  have  extended  that  section  fo  the  case  of  an 
executor  whose  testator  has  died  pending  an  action  brought  by  him;  which, 
though  not  within  the  words  of  it,  was  evidently  within  the  mischief.  2  Ad. 
&  El.  403,  404.  In  Adam  v.  The  Inhabitants  of  the  City  of  Bristol,  2  Ad.  &  El. 
389,  the  premises  of  A.,  a  termor,  having  been  burnt  by  a  riotous  assembly,  A. 
complied  with  all  the  requisites  of  the  statute  7  &  8  Geo.  IV.,  c.  31,  and  com- 
menced an  action  against  the  inhabitants  of  the  city  and  county  within  three 
months  from  the  offense.  Before  verdict  or  judgment,  and  after  the  expiration 
of  the  three  months,  A.  died.  His  executrix  commenced  an  action  against  the 
inhabitants  on  the  seventh  day  from  A.'s  death.  And  the  Court  of  King's 
Bench  held  that,  supposing  an  executrix  entitled  to  sue  in  any  such  case  (as  to 
which  the  court  gave  no  opinion),  the  action,  having  been  commenced  more 
than  three  months  from  the  offense,  was  too  late  under  the  provision  of  section 
3  of  the  statute,  and  that  there  was  no  analogy  between  this  case  and  the  above 
decisions  on  the  general  statute  of  limitations.     But  the  same  equitable  con- 


43^  STATUTES   OF    LIMITATION.  [CHAP.   XVI. 

estate  will  remove  the  bar  as  to  such  debt; '  and  it  has  even  been 
held  that  payments  made  by  a  debtor  to  the  estate,  to  a  person 
who  had  not  then  been,  but  was  subsequently  appointed  adminis- 
trator, was  sufficient  to  revive  the  debt  and  remove  the  statute 
bar.2  In  any  event,  if  an  acknowledgment  of  an  executor  or 
administrator  is  relied  on  to  take  a  debt  out  of  the  statute,  it 
must  be  shown  to  have  been  made  by  him  in  his  representative 
capacity.3  The  declaration  should  contain  a  count  upon  a  prom- 
ise by  the  executor  or  administrator  as  such,4  although  in  New 
Hampshire  this  is  held  to  be  unnecessary.5  In  accordance  with 
this  rule  it  has  been  held  by  the  English  courts  that,  if  an  action 
is  brought  against  an  executor  or  administrator  on  a  bill  or  note 
given  by  the  testator  or  intestate,  and  the  declaration  alleges  a 
promise  by  the  defendant  to  pay  the  bill  or  note,  such  promise 
may  be  denied  by  a  plea  of  non  assumpsit,  notwithstanding  the 
rule  abolishing  the  plea  of  non  assumpsit  to  a  declaration  on  a 
bill  or  note.6  However,  it  is  said  to  have  been  held7  that  if  the 
declaration  charges  the  executor,  on  a  promise  made  by  his  tes- 
tator, and  the  defendant  pleads  the  statute  of  limitations,  to 
which  the  plaintiff  replies,  that  the  testator  did  promise  within 

struction  that  has  been  applied  to  the  fourth  section  of  the  statute  of  James  has 
been  followed  as  to  the  limitation  of  actions  on  bonds,  etc.,  imposed  by  the 
Stat.  3  &  4  Wm.  IV.,  c.  42,  §  3;   Sturgis  v.  Darrell,  4  H.  &  N.  622;  6  id.  120. 

"  Where  the  right  of  action  accrued  to  the  testator  during  his  residence 
abroad,  and  he  died  abroad,  never  having  returned  after  the  accrual  thereof, 
the  statute  is  no  bar  to  an  action  by  his  executors,  although  it  accrued  more 
than  six  years  before  action  brought;  at  all  events  if  it  is  brought  within  six  years 
after  his  death.  Townsend  v.  Deacon,  3  Exch.  706.  See  also  Forbes  v.  Smith,  11 
Exch.  161."  Hammon  v.  Huntley,  4  Cow.  (N.  Y.)  493;  Cayuga  Bank  v.  Ben- 
nett, 5  Hill  (N.  Y.)  236;  Forsyth  v.  Ganson,  5  Wend.  (N.  Y.)  558;  Oakes  v. 
Mitchell,  15  Me.  360;  MTntire  v.  Morris,  14  Wend.  (N.  Y.)  90;  Patterson  v. 
Cobb,  4  Fla.  481 ;  Moore  v.  Porcher,  Bailey  (S.  C.)  Eq.  195;  Reigne  v  Desportes, 
Dudley  (S.  C.)  118;  M'Teer  v.  Ferguson,  Riley  (S.  C.)  159;  Pearce  v.  Zimmer- 
man, Harp.  (S.  C.)  305 ;  Henderson  v.  Ilsley,  19  Miss.  9;  Fisher  v.  Duncan,  1  H. 
&  M.  (Va.)  563;  Oakes  v.  Mitchell,  15  Me.  360;  Banker  v.  Alhearn,  35  id.  364. 

1  Martin  z.  Williams,  17  Johns.  (N.  Y.)  330;  Townsend  v.  Ingersoll,  12  Abb. 
Pr.  (N.  Y.)  N.  S.  354;  Jones  v.  Moore,  5  Binn.  (Penn.)  573. 

s  Townsend  v.  Ingersoll,  vuflra. 

'  Scholey  v.  Walton,  12  M.  &  W.  510. 

4  Browning  v.  I\iris,  5  M.  <v  W.  117. 

'   Huswell  v.  Roby,  3  N.  H.  467. 

ton  v.  Dixon,  2  Dowl.  vS:  L.  892. 

1  Poile  v. ,  Exor.  Sitt.  after  Tr.  T.  1823,  coram  Abbott,  C.  J.,  2  Phil.  Ev. 

ii  ed.     But  this  1  ase  is  omitted  in  the  seventh  edition. 


§191.]  EXECUTORS   AND    ADMINISTRATORS.  439 

six  years;  proof  on  the  part  of  the  plaintiff,  that  the  executor 
promised  within  six  years,  and  that  the  testator's  death  was 
within  this  period,  will  support  the  count  in  the  declaration;  for 
that  the  executor's  promise  shows  a  liabilty  to  pay,  existing  before 
the  time  of  the  testator's  death,  and  the  law  will  imply  a  promise 
by  the  testator  to  pay  what  he  was  liable  to  pay. 

The  mere  existence  of  a  debt  owing  by  the  testator  or  intestate 
is  not  evidence  of  a  promise  to  pay  by  the  executor  or  admin- 
istrator, as  executor  or  administrator.1  Hence,  as  against  an 
executor  or  administrator,  an  acknowledgment  merely  by  him  of 
the  debt's  existence  is  not  sufficient  to  take  the  case  out  of  the 
statute;  there  must  be  an  express  promise.2  In  an  action  of 
assumpsit  against  several  executors,  who  pleaded  the  general 
issue  and  the  statute  of  limitations,  Abbott,  C.  J.,  held,  that 
neither  an  acknowledgment  of  the  debt  by  all  the  executors,  nor 
an  express  promise  by  one  of  them,  took  the  case  out  of  the 
statute;  there  ought  to  have  been  an  express  promise  by  a\\.3(a) 
In  New  Jersey  it  has  been  held  that  a  sole  executor  has  the 
power,  by  a  new  promise,  to  remove  the  bar  of  the  statute,  and 
that  all  of  several,  or  one  of  two,  executors  or  administrators 
may  bind  the  estate  by  a  new  promise  without  making  the  repre- 
sentatives personally  liable.4 

SEC.  191.  What  Acknowledgment  by  an  Executor  is  sufficient. 
—  It  was  formerly  held  in  England5  that  an  acknowledgment  or 
promise  by  an  executor,  in  order  to  be  operative  to  remove  the 
statute  bar,  must  be  express,  or  at  least  of  a  more  definite  char- 
acter than  one  which  would  be  sufficient  to  bind  the  original 
debtor  if   it   had    been    made    by   him.      But   under  the  present 

1  Atkins  v.  Tredgold.  2  B.  &  C.  23,  by  Abbott,  C.  J. 
»  Tullock  v.  Dunn,  Ry.  &  M.  416. 
1  Scholey  v.  Walton,  12  M.  &  W.  510. 
4  Shreve  v.  Joyce,  36  N.  J.  L.  44. 
1  Tullock  z.  Dunn,  Ry.  &  Moo.  416. 

(a)  By    the    weight   of    English    au-  the  executors,  while  §  2  enables   the 

thority  an  acknowledgment  or  promise  creditor   to  sue   such   executor    alone, 

by   one  of    several    executors  did  not  In  re  Macdonald,  [1897]  2  Ch.  181;  Ast- 

bind  the  others  before  Lord  Tenierden's  bury  v.  Astbury,  [1898]  2  Ch.  in.     As 

Act;  but,  under  that  statute,  he  thereby  to  payment  of  interest  by  one  of  several 

binds    the    testator's    estate,    and    the  mortgagees,  see  Bailie  v.  Irwin,  [1897] 

creditor  may  recover  judgment  against  2  I.  R.  614. 
Mm   thereon    in    an  action  against    all 


440  STATUTES   OF   LIMITATION.  [CHAP.   XVI. 

theory  as  to  acknowledgments  it  would  undoubtedly  be  held  in 
England,  as  well  as  in  the  States  where  the  English  doctrine  as 
to  the  effect  of  an  acknowledgment  made  by  an  executor  pre- 
vails, that  an  acknowledgment  which  would  be  binding  on  the 
original  debtor,  would  also  be  sufficient  if  made  by  his  executor.1 

Sec.  192.  Where  Executor  is  also  Devisee  in  Trust.  —  It  has 
been  held  in  England  that,  where  an  executor  acts  in  a  double 
capacity,  as  where  he  is  both  executor  and  trustee  of  real  estate, 
and  in  that  capacity  makes  a  payment  which  amounts  to  an 
acknowledgment  of  a  debt  in  his  character  of  executor,  it  does 
not  revive  a  debt  against  the  realty  as  in  such  a  case  no  principle 
of  marshaling  exists;2  and  such  is  doubtless  the  rule  in  all  those 
States  where  the  acknowledgment  of  an  executor  is  regarded  as 
sufficient  to  revive  a  debt,  except  where  real  estate  and  personal 
property  are  put  upon  the  same  footing  in  the  hands  of  an 
executor. 

SEC.  193.  Where  Statute  has  run  against  Debt  before  Testator's 
Death.  —  Where  the  statute  has  run  against  a  debt  due  the 
estate,  before  the  death  of  the  testator  although  upon  the  very 
day  of  his  death,  it  will  be  barred,  although  the  executor  brings 
an  action  within  a  reasonable  time  after*  his  death,3  unless  it  is 
saved  by  the  express  provisions  of  the  statute,  as  is  the  case  in 
several  of  the  States,  (a) 

SEC.  194.  When  Statute  has  begun  to  run  during  the  Life  of 
the  Testator.  —  Except  in  those  States  where  the  statute  other- 
wise provides,  when  the  statute  has  begun  to  run  upon  a  claim 
during  the  life  of  a  creditor  it  is  not  suspended  by  his  death, 
although  no  personal  representative  has  been  appointed ; 4  but, 

1   Banning  on  Limitations,  228;  Briggs  v.  Wilson,  5   De  G.  M.  &  G.  12, 
*  Fordham  i.\  Walls,  10  Hare,  217. 

3  Penny  v.  Brice,  18  C.  B.   N.  S.  393. 

4  Nicks  v.  Martindale,  Harp.  (S.  C.)  135;  Abboit  v.  McElroy,  18  Miss.  100; 
Davis  v.  Garr.  6  N.  Y.  124;   Burnet  v.  Bryan,  6  N.  J.  L.  377;   Hull  v.  Deatly,  7 

(a)  The  general  rule,  sometimes  regu-  Oil  &  Coal  Co.  (W.  Va.),  35  S.   E   986; 

iated    \>v  Slate   statutes,  as  in   Nevada  Bambrick    v.    Bambrick,  157   Mo.  423; 

(§  2898),  and    Montana  (£  156).  now  is  Jones  v.  Powning(Nev.),  60  Pac.  833;  In 

that  an  executor  or  administrator  can-  re  Mouillerat's  Estate,   14  Mont.  245; 

not  revive  claims  apainsi  his  testator  or  Schlicker  v.  Hemenway  (no  Cal.  579). 

Intel  tate  which  were  barred  before  the  52  Am.  St.  Rep.  116,  n.) 
latter's  death.     Stiles  v.   Laurel    Fork 


§  1 94--]  EXECUTORS   AND    ADMINISTRATORS.  44I 

when  the  statute  has  not  begun  to  run  during  his  life,  it  will  not 
begin  to  run  against  his  estate  until  an  executor  or  administrator 
has  been  duly  appointed  and  qualified,  upon  the  principle  that 
the  statute  cannot  begin  to  run  until  there  is  a  person  in  exist- 
ence capable  of  suing  or  being  sued  upon  the  claim.1 

Thus,  where  property  was  acquired  after  the  death  of  the 
intestate,  it  has  been  held  that  the  statute  does  not  commence 
to  run  against  an  action  of  trover  therefor  until  administration 
is  granted;2  and  where  the  statute  gives  a  remedy  to  the  executor 
or  administrator  of  an  estate  of  a  person  killed  by  the  negligence 
of  another,  and  also  provides  that  the  action  shall  be  brought 
within  one  year  from  the  time  when  the  right  of  action  accrued, 
the  action  is  not  treated  as  having  accrued  until  the  appointment 
of  an  administrator;3  but  the  rule  would  be  otherwise  if  the  stat- 
ute provided  that  an  action  therefor  should  be  brought  within 
one  year  from  the  time  of  such  intestate's  death,  because  in  that 
case  the  statute  attaches  immediately,  and  the  bar  becomes  com- 
plete at  the  end  of  a  full  year  from  that  time.  There  is  also 
another  element  that  enters  into  cases  of  this  character,  and  that 
is,  that  the  statute  gives  the  right  to  sue,  and  no  such  right  exists 
independent  thereof,  it  only  exists  in  the  manner  and  for  the 

Bush  (Ky.)  687;  Baker  v.  Brown,  t8  111.  91;  Byrd  v.  Byrd,  28  Miss.  144;  Tynan 
v.  Walker,  35  Cal.  634;  Brown  v.  Merrick,  16  Ark.  612;  Dekay  v.  Darrah,  14 
N.  J.  L.  288;  Jackson  v.  Hitt,  12  Vt.  285;  Stewart  v.  Spedden,  5  Md.  433; 
Hayman  v.  Keally,  3  Cranch  C.  C.  325.  In  Young  v.  Mackall,  4  Md.  362,  a 
right  of  action  accrued  on  one  of  two  bonds  in  1834,  and  on  the  other  in  1835 
and  the  obligee  died  in  1837,  in  which  year  his  executor  filed  a  bill  against  the 
obligor,  which  suit  abated  by  the  death  of  the  complainant  in  1841.  The 
obligor  died  in  1846.  An  administrator  de  bonis  non  on  the  obligee's  estate  was 
appointed  in  October,  1849,  a°d  the  claim  on  the  bond  was  filed  the  same 
month.  It  was  held  that  as  the  Maryland  statute  (running  twelve  years  on 
bonds)  had  begun  to  run  in  the  lifetime  of  the  obligee,  none  of  the  facts  above 
stated  stopped  its  operation.  If  a  suit  is  abated  and  not  revived,  it  takes  no 
time  out  of  the  statute.  Boatwright  v.  Boatwright,  L.  R.  17  Eq.  71;  Rhodes  v. 
Smethurst,  4  M.  &  W.  42. 

1  Jolliffe  v.  Pitt,  2  Vern.  694;  Burdick  v.  Garrick,  L.  R.  5  Ch.  233;  Webster 
v.  Webster,  10  Ves.  93.  The  statute  is  suspended  until  the  appointment  of  an 
administrator.  Briggs  v.  Thomas,  32  Vt.  176;  Toby  v.  Allen,  3  Kan.  399; 
Elter  v.  Finn,  12  Ark.  632;  McKenzie  v.  Hill,  51  Mo.  303;  Hull  v.  Deatly, 
supra;  Nelson  v.  Herkell,  30  Kan.  456;  Whitney  v.  State,  52  Miss.  732. 

8  Johnson  v.  Wren,  3  Stew.  (Ala.)  172;  Clark  v.  Hardiman,  2  Leigh  (Va.)  347; 
Bucklin  v.  Ford,  5   Barb.  (N.  Y.)  393. 

3  Andrews  v.  Hartford,  etc.,  R.  Co.,  34  Conn.  57;  Sherman  v.  Western,  etc., 
Co.,  24  Iowa,  515. 


442  STATUTES    OF    LIMITATION.  [CHAP.    XV  i. 

period  provided  by  the  statute  ;  and,  strictly  speaking,  the  pro- 
vision as  to  the  period  within  which  action  must  be  brought  is  a 
condition  imposed  upon  the  right,  rather  than  a  limitation,  and 
unless  the  statute  is  complied  with,  the  right  is  defeated,  and  can 
never  be  revived  either  by  an  acknowledgment  or  promise.1  The 
rule  is  well  settled,  that  where  a  cause  of  action  does  not  accrue 
until  after  the  death  of  the  creditor  or  claimant  the  statute  does 
not  begin  to  run   until  administration  is   granted  ;2  {a)  but  if  it 

1  In  Andrews  v.  Hartford,  etc.,  R.  Co.,  supra,  an  action  was  brought  against 
the  defendant  to  recover  under  a  statute  of  the  State,  for  injuries  inflcted  by 
the  negligence  of  the  defendant,  upon  the  plaintiff's  intestate,  of  which  he  sub" 
sequentlv  died.  The  statute  provided  a  remedy  in  such  cases,  but  limited  the 
right  of  action  to  one  year  after  the  cause  of  action  arose.  The  injury  was 
inflicted  Dec.  29,  1864,  and  death  ensued  a  few  days  afterwards.  The  action 
•was  not  commenced  until  June  14,  1S66,  considerably  more  lhan  one  year  after 
the  plaintiff's  intestate  died,  but  within  one  year  after  letters  of  administration 
were  taken  out  upon  his  estate.  The  defendants  insisted  that,  as  the  action 
was  noi  commenced  within  one  year  after  the  intestate's  death,  the  remedy  was 
lost.  The  court  held  that  the  remedy  was  not  lost,  because  the  cause  of  action 
did  not  arise  until  an  executor  or  administrator  was  appointed  upon  the  estate. 
"  The  cause  of  action,"  said  Butler,  J.,  "  would  have  been  perfect  on  the  hap- 
pening of  the  death,  and  would  have  been  barred  at  the  end  of  one  year  from 
the  happening  of  the  event,  if  an  ordinary  case,  or  there  had  been  an  executor. 
But  it  is  a  rule  of  law,  recognized  by  the  court  (Hobart  v.  Conn.  Turnpike  Co., 
supra),  that  a  cause  of  action  accruing  to  an  administrator  after  the  death  of  the 
intestate  is  not  complete,  and  deos  not  arise  and  exist  so  that  the  statute  can 
begin  to  run  upon  it  until  an  administrator  is  appointed  who  can  bring  suit. 
And  the  legislature  seem  to  have  had  that  rule  in  view  when  they  enacted  the 
statute;  for  they  did  not  say  that  the  action  should  be  barred  unless  commenced 
within  one  year  from  the  death,  or  the  happening  of  the  events  for  which  it  is 
given,  but  '  unless  commenced  within  one  year  after  the  cause  of  action  shall 
have  arisen.'  Inasmuch,  then,  as  under  a  well-settled  rule  no  cause  of  action 
can  arise  and  exist  in  favor  of  an  administrator  until  he  comes  into  existence 
as  such  and  this  suit  was  brought  within  one  year  after  the  plaintiff  received 
his  appointment,  it  was  not  barred."  In  Sherman  v.  Western,  etc.,  R.  R.  Co., 
supra,  the  same  rule  was  adopted  in  a  case  arising  under  a  similar  slatuie) 
where  the  plaintiff's  intestate  was  thrown  from  a  boat  and  capsized  by  reason  of 
the  negligence  of  the  employees  of  the  defendant  stage  company,  whose  passen- 
ger she  was,  and  after  struggling  ten  minutes,  more  or  less,  to  save  her  life,  was 
drowned.     See  also  Wood  v.  Ford,  20  Miss.  57,  where  a  similar  rule  was  applied. 

'   Hobart  v.  Conn.  Turnpike  Co.,  supra;  Beauchamp  v.  Mudd,  2   Bibb  (Ky.) 
Abbott  v.  McElroy,  18  Miss.  100;   Fish  wick  v.  Sewell,  4  H.  it  J.  (Md.)  393. 

(a)   In  general,   limitation    does    not  against   a   decedent's   estate   after  the 

to  run  if  there  is  no  administra-  lapse    of    a    reasonable    time,   though 

on    .1    decedent's  estate    when    the  there    is    no    administration.      Kulp    v. 

iction  accrues.     See  Bullard's  Kulp,    51    Kan.    341;  Black    v.   Elliott 

n6  Cal.  355.     In    Kansas,  it  is  (Kan.),  65  Pac.  215. 

I.    Id    that    the    statute    begins    to    run 


§   I94-]  EXECUTORS   AND   ADMINISTRATORS.  443 

accrues  before  his  death,  the  running  of  the  statute  is  not  sus- 
pended,1 unless  express  provision  to  that  effect  is  made  in  the 
statute.  In  the  case  of  an  infant,  or  indeed  any  person  under  a 
statutory  disability  at  the  time  of  their  death,  the  statute  does 
not  begin  to  run  until  administration  is  granted.2  The  circum- 
stance that  an  executor  is  named  in  the  will  does  not  change  the 
rule,  as  the  statute  does  not  attach  until  he  has  been  duly  quali- 
fied to  act  as  such  by  proof  of  the  will;3  and  it  seems  that  when 

1  Nicks  v.  Martindale,  Harp.  (S.  C.)  135;  Burnet  v.  Bryan,  6  N.  J.  L.  377; 
Davis  v.  Garr,  6  N.  Y.  124;  Goodhue  v.  Barnwell,  Rice  (S.  C.)  Ch.  198. 

s  Goodhue  v.  Barnwell,  supra.  In  re  Tilden,  98  N.  Y  434,  it  was  held  that 
when  there  have  been  several  accountings  of  executors,  and  it  appears  that  each 
subsequent  accounting  was  based  upon  the  result  as  found  upon  the  preceding 
one.  that  the  validity  of  each  previous  accounting  was  unchallenged  by  any 
objection  upon  the  one  next  succeeding,  and  that  the  last  accounting  was  based 
upon  a  citation  duly  issued  and  served  upon  the  parties  interested,  and  upon 
proceedings  regularly  conducted,  it  is  binding  and  conclusive  upon  all  the 
parties  as  to  the  validity  of  the  prior  decrees. 

3  Forrest  v.  Douglas,  4  Bing.  704;  Garland  v.  Milling,  6  Ga.  31:0;  Ellison  v. 
Allen,  8  Fla.  206;  Hobart  v.  Conn.  Turnpike  Co.,  15  Conn.  145.  The  view 
adopted  in  the  text,  that  where  a  statute  gives  a  right,  and  provides  a  period 
within  which  it  shall  be  enforced,  the  clause  relating  to  the  time  of  its  enforce- 
ment is  a  condition  rather  than  a  limitation,  is  sustained  in  Pittsburgh,  etc.,  R. 
Co.  v.  Hine,  25  Ohio  St.  629,  and  in  Boyd  v.  Clark,  8  Fed.  Rep.  849,  where 
Brown,  D.  J.,  said:  "  The  lex  loci  contractus  governs  the  rights  of  parties,  but 
the  lex  fori  determines  the  remedy.  The  principle  has  been  applied  in  a  large 
number  of  cases  arising  upon  contracts;  but  in  Dennick  v.  Railroad  Co.,  103 
U.  S.  n,  it  was  applied  to  a  statute  of  this  description,  where  the  administrator 
brought  his  action  in  another  State.  An  almost  unbroken  series  of  adjudica- 
tions has  also  established  that  the  time  within  which  an  action  may  be  brought 
relates  generally  to  the  remedy,  and  must  be  determined  by  the  law  of  the 
forum.  Hence,  it  would  follow  that  if  this  statute  contained  no  limitation  of 
time  within  which  an  action  must  be  brought,  and  the  time  had  been  left  to 
depend  upon  the  general  statutes  of  limitations  in  the  Province  of  Ontario,  it  is 
clear  that  we  should  have  disregarded  such  statute,  and  permitted  the  plaintiff 
to  bring  this  action  at  any  time  before  actions  of  this  description  would  be  barred 
by  the  statutes  of  this  State. 

"An  exception  to  this  general  rule,  however,  is  suggested  in  Story's  Conflict 
of  Laws,  sec.  582.  of  cases  where  the  statutes  of  limitation  or  prescription  of  a 
particular  country  do  not  only  extinguish  the  right  of  action,  but  the  claim  or 
title  itself,  ipso  facto,  and  declare  it  a  nullity  after  the  lapse  of  the  prescribed 
period;  and  the  parties  are  within  the  jurisdiction  during  the  whole  of  that 
period,  so  that  it  has  actually  and  fully  operated  upon  the  case. 

"  The  cases  of  Shelby  v.  Guy,  11  Wheat.  (U.  S.)  361;  Goodman  v.  Munks,  8 
Port.  (Ala.)  84  (.overruled  by  Jones  v.  Jones,  iS  Ala.  248);  Brown  v.  Brown,  5 
Ala.  508;  and  Fears  v.  Sykes,  35  Miss.  633,  do  in  fact  lend  support  to  this  dis- 
tinction;  the  general  tenor  of  these  cases   being  to  the  effect  that  where  the 


444  STATUTES   OF   LIMITATION.  [CHAF.   XVI. 

an  executor  accepts  the  trust  under  the  will  the  statute  begins  to 
run  from  the  time  of  acceptance,  and  not  from  the  time  of  giving 
public  notice  thereof.1  But  it  has  been  held  in  North  Carolina 
that  as  the  executor's  right  to  the  personal  property  of  his  testa- 
tor commences  at  the  death  of  the  testator,  the  statute  begins  to 
run  against  him  from  that  time.2  But  such  is  not  the  rule  gen- 
statute  of  one  State  declares  that  the  possession  of  personal  property  for  a  cer- 
tain period  vests  an  absolute  title,  such  prescription  will  be  enforced  in  every 
other  State  to  which  the  property  may  be  removed  or  wherein  the  question  may 
arise. 

"  In  the  Pittsburgh,  etc.,  R.  Co.  v.  Hine,  25  Ohio  St.  629,  it  was  held  that 
under  an  act  requiring  compensation  for  causing  death  by  wrongful  act,  neg- 
lect, or  default,  which  gave  a  right  of  action,  provided  such  action  should  be 
commenced  within  two  years  after  the  death  of  such  deceased  person,  the  pro- 
viso was  a  condition  qualifying  the  right  of  action,  and  not  a  mere  limitation 
on  the  remedy.  It  was  further  held  lhat  the  plaintiff's  right  must  be  deter- 
mined as  the  act  originally  stood,  and  was  therefore  subject  to  the  restrictions 
contained  in  the  proviso,  and  the  action,  not  having  been  brought  within  the 
two  years,  could  not  be  sustained.  The  case  differs  from  the  one  under  con- 
sideration only  in  the  fact  that  the  limitation  was  contained  in  a  proviso  to  the 
section  directing  in  whose  name  the  action  should  be  brought. 

"  In  Eastwood  v.  Kennedy,  44  Md.  563,  it  was  held  that  where  a  statute  of  the 
United  Slates  for  the  District  of  Columbia  gave  a  claim  for  the  recovery  of 
usurious  interest,  provided  suit  to  recover  the  same  be  brought  within  one 
year  after  the  payment  of  such  interest,  it  would  not  be  competent  for  a  party 
to  recover  in  Maryland  after  the  lapse  of  a  year,  and  that  the  courts  of  that 
State  were  bound  to  respect  and  apply  the  limitations  contained  in  the  act.  The 
cases  of  Baker  v.  Stonebraker,  36  Mo.  338,  349,  and  Huber  v.  Stiener,  2  Bing. 
N.  C.  202,  are  somewhat  analogous,  but  throw  little  additional  light  upon  the 
question. 

"  We  are  compelled  then  to  deal  with  it  to  a  certain  extent  as  an  original 
question.  The  true  rule  I  conceive  to  be  this:  that  where  a  statute  gives  a 
right  of  action  unknown  to  the  common  law,  and  either  in  a  proviso  to  the 
section  conferring  the  right  or  in  a  separate  section  limits  the  time  within  which 
an  action  shall  be  brought,  such  limitation  is  operative  in  any  other  jurisdic- 
tion in  which  action  may  be  brought." 

1  Sewall  v.  Valentine,  6  Pick.  (Mass.)  276. 

4  Arnold  v.  Arnold,  13  Ired.  (N.  C.)  L.  174.  The  statute  is  a  good  defense 
where  time  has  once  begun  to  run  in  favor  of  a  debtor  to  an  estate  in  the  life- 
time of  the  intestate,  the  absence  of  a  personal  representative  in  such  a  case 
not  being  sufficient  10  make  an  exception  to  the  almost  universal  rule  that 
when  time  has  once  commenced  to  run  it  will  never  cease.  Rhodes  v.  Smethurst, 
4  M.  &  W.  42;  Freake  v.  Cranefeldt,  3  Myl.  &  Cr.  499;  2  Wms.  Saund.  63  k; 
Stur^is  v.  Darell,  4  H.  &  N.  622.  This  rule,  however,  as  we  shall  see,  is  not 
ab  ilutely  without  exception.  And  where  an  action  abated  by  the  death  of  a 
defendant  debtor,  it  was  allowed  to  be  continued  a  reasonable  time,  though  the 
.  period  had  elapsed  in  the  interval.  Curlewis  v.  Mornington,  7  El.  & 
Bl.  2S3.      In  England,  the  rule  of  the  North  Carolina  case  is  adopted  where  the 


§  195 -J  EXECUTORS   AND   ADMINISTRATORS.  445 

orally  adopted.1  The  appointment  of  an  administrator  in  one 
State  does  not  put  the  statute  in  motion  either  for  or  against  the 
estate  in  another  State ;  but,  as  to  all  property  or  claims  existing 
in  such  other  jurisdiction,  the  statute  remains  suspended  until 
proof  of  the  will,  or  the  appointment  of  an  administrator  there.2 

SEC.  195.  Executors  de  son  Tort.  —  An  important  exception 
to  the  rule  previously  stated  exists  where  the  defendant  has  taken 
possession  of  the  property  of  the  deceased  debtor  as  executor 
de  son  tort,  and  subsequently  obtains  letters  of  administration.  In 
such  case  time  begins  to  run  in  favor  of  the  estate  from  the  time 
when  the  defendant  became  such  executor  de  son  tort,  because 
such  an  executor  can  be  sued  either  at  law  or  in  equity  as  soon 
as  he  assumes  to  act  as  such,3  and  his  previous  acts  are  legalized 

creditor  has  not  died  intestate,  but  has  appointed  an  executor,  and  that 
executor  simply  neglects  to  prove  the  will.  There  does  not  then  exist  any  sav- 
ing until  proof.  The  reason  of  this  distinction  is  that  while  an  administrator 
derives  his  title  wholly  from  the  Court  of  Probate,  and  has  no  title  to  the  prop- 
erty of  the  deceased  till  the  grant  of  letters  of  administration  is  made  out,  an 
executor  has  a  title  immediately  by  virtue  of  the  will.  Woolley  v.  Clark,  5  B. 
&  Aid.  744.  If,  however,  such  executor  eventually  renounces  probate,  inasmuch 
as  such  renunciation  relates  back  to  the  death  of  the  testator,  it  seems  doubtful 
how  far  the  testator's  estate  could  be  held  to  have  been  represented  at  all,  or 
time  to  have  commenced  to  run  against  it.  In  fact,  it  may  be  argued  that 
though,  when  an  executor  delays  to  prove  a  testator's  will,  time  runs  against 
him  from  the  testator's  death,  yet  that  if  he  eventually  fails  to  prove  at  all,  and 
an  administrator  is  appointed,  time  does  not  run  against  the  latter  until  his 
appointment.     But  upon  this  point  there  is  no  direct  authority. 

1  Garland  v.  Milling,  supra;   Forrest  v.  Douglas,  supra. 

*  Lee  v.  Gause,  2  Ired.  (N.  C.)  L.  440.  In  Hobart  v.  Conn.  Turnpike  Co., 
supra,  the  testatrix  died  in  New  York  owning  stock  in  the  defendant  company, 
upon  which  certain  dividends  had  been  declared.  The  court  held  that  the 
statute  did  not  begin  to  run  until  administration  had  been  granted  in  Connecti- 
cut, and  that  the  proving  of  the  will  and  qualification  of  the  executor  in  New 
York  did  not  affect  the  question,  saying:  "  When  did  the  statute  begin  to  run 
against  thsi  claim-  Was  it  when  the  divdends  accrued,  or  when  administration 
was  granted  on  her  estate?  And  this  precise  question  was  decided  in  the  case  of 
Murray  v.  East  India  Co  ,  5  B.  &  Aid.  204,  in  which  Abbott,  C.  J.,  giving  the 
unanimous  opinion  of  the  Court  of  King's  Bench,  after  referring  to  the  authori- 
ties, and  coming  to  the  conclusion  that  they  sustained  the  claim  of  the  plaintiff 
that  the  statute  did  not  begin  to  run  until  the  granting  of  administration,  says: 
'  Now,  independently  of  authority,  we  think  it  cannot  be  said  that  a  cause  of 
action  exists  unless  there  be  also  a  person  in  existence  capable  of  suing.'  " 
See  also  Perry  v.  Jenkins,  1  Myl.  &  Cr.  118;  Cary  v.  Stephenson,  2  Salk.  421; 
Burdick  v.  Garrick,  L.  R.  5  Ch.  241. 

3  In  Webster  v.  Webster,  10  Ves.  93,  the  plea  of  the  statute  was  allowed  by 


446  STATUTES   OF   LIMITATION.  [CHAP.   XVr 

by  his  taking  out  letters  of  administration.1  But  it  seems  that 
an  express  promise  to  pay  a  debt  due  from  the  estate,  made  by 
an  executor  de  son  tort,  is  not  binding  so  as  to  suspend  or  remove 
the  statute  bar,  although  he  is  subsequently  appointed  adminis- 
trator;2 for,  although  a  person  who  undertakes  to  discharge  and 
settle  accounts  of  the  estate  of  a  deceased  person  before  he  is 
appointed  administrator  will,  after  his  appointment  as  such,  be 
responsible  for  his  acts,  upon  the  ground  that  his  appointment 
retroacts  to  the  time  of  the  intestate's  death,3  yet  this  rule  is  not 
carried  to  such  an  extent  that  the  estate  can  be  prejudiced  by  his 

an  executor  whose  testator  died  in  1788,  but  of  whose  will  no  probate  had  been 
taken  out  until  1S02,  and  within  six  years  of  the  filing  of  the  bill,  inasmuch  as 
the  defendant,  the  executor,  had  possessed  himself  of  the  testator's  personal 
estate,  and  therefore  might  have  been  sued  as  executor  de  son  tort  previously 
to  1802. 

In  Boatwright  v.  Boatwright,  L.  R.  17  Eq.  71,  the  case  of  Webster  ■».  Webster 
was  quoted  as  an  authority,  and  as  applicable  to  a  case  where  the  executor 
de  son  iort  and  the  person  who  subsequently  proved  the  will  of  a  deceased  debtor 
were  different  persons.  This  case  was  mainly  decided  on  the  ground  that  the 
cause  of  action  had  already  accrued  in  the  testator's  lifetime. 

There  is  conflict  of  opinion  as  to  how  far  an  executor  de  son  tort  may  be  sued 
alone,  without  the  appointment  of  a  legal  personal  representative  to  his  testator. 
In  Rayner  v.  Koehler,  L.  R.  14  Eq.  262,  a  bill  was  thus  sustained  against  an 
executrix  de  son  tort.  In  Cary  v.  Hills,  L.  R.  15  Eq.  79,  Lord  Romilly,  M.  R., 
declined  to  follow  Rayner  v.  Koehler,  and  in  Rowsell  v.  Morris,  Sir  G.  Jessel, 
M.  R.,  did  the  same.  L.  R.  17  Eq.  20.  And  see  Penny  71.  Watts,  2  Ph.  149; 
Beardmore  v.  Gregory,  2  H.  &  M.  491;  Coote  v.  Whittington,  L.  R.  16  Eq.  534. 
See  also  In  re  Lovett,  3  Ch.  D.  198,  and  held  that  the  law  of  the  court  was  that 
a  suit  for  administration  is  defective  when  the  legal  personal  representative  was 
not  before  it.  This  may  possibly  diminish  the  authority  of  cases  where  a  plain- 
tiff has  been  denied  a  fresh  right  on  the  appointment  of  a  legal  personal  repre- 
sentative of  his  debtor,  on  the  ground  that  he  could  have  proceeded  in  the 
absence  of  such  legal  personal  representative  to  recover  his  debt  against  the 
executor  de  son  tort;  a  course  which,  in  equity  at  all  events,  will  be  no  longer 
open  to  him.  In  Boatwright  v.  Boatwright,  supra,  the  Master  of  the  Rolls 
remarked  "I  think  it  must  be  held,  when  the  point  comes  to  be  decided,  that 
if  the  remedy  against  the  personal  estate  is  barred,  and  the  remedy  against  the 
real  estate  has  been  kept  alive  by  reason  of  payment,  that  the  court  will  find 
some  means  of  making  the  real  estate  liable,  although  the  creditor  cannot  make 
the  legal  personal  representative  a  party  to  the  suit."  Banning  on  Limita- 
tions, 231-233. 

1  Manger  v.  Ryan,  19  Mo.  196;  Priest  ?<.  Watkins,  2  Hill  (N.  Y.)  225;  Shillabaer 
7.  Wyman,  15  Mass.  322;  Rattoon  v.  Overacker,  8  Johns,  (N.  Y.)  126;  Alvord 
v.  Marsh,  12  Allen  (Mass.)  603. 

1  Haselden  v.  Whitesides,  2  Strobh.  (S.  C.)  L.  353. 

1  Alvord  ■".   Marsh,     upra. 


§   196.]  EXECUTORS   AND   ADMINISTRATORS.  447 

acts.  Such  executors  are  liable  only  to  the  extent  of  the  assets 
which  come  into  their  hands; l  and  while  he  is  liable  as  executor, 
and  may  use  proper  means  to  protect  the  assets  in  his  hands,  yet 
he  possesses  none  of  the  rights  or  powers  which  an  executor 
derives  on  account  of  his  office.2  They  are  liable  to  account  to 
distributees  or  legatees  like  other  executors,  and  cannot  rely  on 
the  statute  of  limitations  to  protect  them  from  such  liability. J 
An  executor  de  son  tort  of  an  executor  de  son  tort  represents  the 
first  testator,  so  that,  where  property  was  held  in  trust  by  him, 
the  statute  of  limitations  does  not  begin  to  run  in  his  favor  until 
the  relationship  is  ended.4 

SEC.  196.  Statutory  Provisions  relative  to  Suits  in  favor  of 
Decedent's  Estates.  —  In  Maine,  provision  is  made  that,  in  case  of 
the  death  of  a  party  entitled  to  bring  an  action  before  or  within 
thirty  days  after  the  statute  has  run,  and  the  cause  of  action  sur- 
vives, an  action  may  be  commenced  therefor  against  the  executor 
or  administrator  within  two  years  after  his  appointment,  and  not 
afterwards;5  and  practically  the  same  provision  exists  in  Ver- 
mont, Massachusetts,  and  Michigan.6  In  Rhode  Island,7  where 
a  person  entitled  to  bring  an  action  dies  before  the  statute  has 
run  or  within  sixty  days  thereafter,  and  the  cause  of  action  sur- 
vives, an  action  may  be  brought  by  his  executor  or  administrator 
within  one  year  after  the  granting  of  letters  testamentary  or 
administration.      In  New  York,8  where  a  person  entitled  to  bring 

1  Cook  v.  Sanders,  15  Rich.  (S.  C.)  63;  Hill  v.  Henderson,  21  Miss.  683; 
Mitchell  v.  Lunt,  4  Mass.  654. 

9  MTntire  v.  Carson,  2  Hawks  (N.  C.)  544;  Meigan  v.  M'Donough,  10  Watts 
(Penn.)  287. 

3  Hansford  v.  Elliott,  9  Leigh  (Va.)  79. 

*  Dawson  v.  Callaway,  18  Ga.  573. 
s  Appendix,  Maine. 

*  See  Appendix. 

7  Appendix,  Rhode  Island. 

*  Appendix,  New  York. 

In  Harrington  v.  Keteltas,  92  N.  Y.  40,  it  was  held  that  an  executor,  having 
notice  that  there  is  a  debt  due  the  estate,  is  bound  to  active  diligence  for  its 
collection;  he  may  not  wait  for  a  request  from  the  distributees.  In  case  the 
debt  is  lost  through  his  negligence,  he  becomes  liable  as  for  a  devastavit.  And 
if  the  case  is  one  of  such  doubt,  that  an  indemnity  is  proper,  he  must  at  least 
ask  for  it;  and  at  any  rate  he  takes  the  risk  of  showing  that  the  debt  was  not 
lost  through  his  negligence.  The  statute  of  limitations  does  not  begin  to  run 
in  favor  of  an  executor,  as  against  a  claim  for  damages  occasioned  by  his  negli- 


448  STATUTES   OF    LIMITATION.  [(HAP.   XVI. 

an  action  dies  before  the  statute  has  run  upon  the  claim,  an  action 
may  be  commenced  by  his  representatives  any  time  within  the 
statutory  period,  or  within  one  year  after  the  death  of  such  per- 
son ;  and  practically  the  same  provision  exists  in  the  States  of 
Mississippi,  Missouri,  Connecticut,  South  Carolina,  Illinois, 
Arkansas,  Colorado,  California,  Oregon,  Florida,  Iowa,  Kentucky, 
Nevada,  Dakota,  Idaho,  New  Mexico,  and  Minnesota,  except 
that  in  the  latter  State  six  months  between  the  death  of  the  party 
and  granting  administration  and  six  months  thereafter  are  not 
to  be  included  in  computing  the  statutory  period.1  In  New 
Jersey,2  six  months  from  the  time  of  death  is  given  where  the 
statute  has  not  already  run,  in  all  actions  of  trespass,  trover, 
replevin,  debt  on  simple  contract,  for  arrearages  of  rent,  on  a 
parol  demise,  account,  upon  the  case,  except  for  slander,  and 
such  actions  as  concern  the  trade  or  merchandise  between  mer- 
chants, their  factors,  agents,  and  servants.  This  provision 
embraces,  also,  all  actions  upon  sealed  instruments,  sheriffs'  and 
constables'  bonds,  and  judgments.  In  Tennessee  and  Arizona 
the  same  peiiod,  under  the  same  circumstances,  is  allowed  in 
reference  to  all  claims.  In  Indiana,3  eighteen  months  after  the 
expiration  of  the  time  is  given  in  all  cases  where  the  person  in 
whose  favor  a  claim  existed  dies  before  the  statute  has  run.  In 
Texas,4  twelve  months  after  the  expiration  of  the  statutory  period 
are  given,  in  all  cases  where  the  claimant  dies  before  the  statute 
runs,  unless  an  executor  or  administrator  is  sooner  appointed; 
but  in  the  latter  case,  twelve  months  from  the  date  of  such 
appointment  constitutes  the  limit.  In  Montana,5  if  the  plaintiff 
in  an  action  dies,  and  judgment  in  his  favor  is  subsequently 
reversed,  his  heirs  or  representatives  may  commence  a  new  action 
within  one  year  after  such  reversal.  In  Georgia,  a  period  not 
exceding  five  years  after  the  death  of  a  party  is  given  within 
which  an  action  may  be  brought,  if  the  statute  has  not  already 
run  at  the  time  of  his  death;  and  practically  the  same  provision 

jjcnce  in  collecting  a  debt  due  the  estate  from  the  time  of  the  probate  of  the 
will,  but  at  best  only  from  the  time  of  the  loss. 

1  Appendix,  Minnesota. 

?  Appendix,  New  Jersey. 

2  Appendix,  Indiana. 
4  Appendix,  Texas . 

■  Appendix,  Montana. 


§  197- J  EXECUTORS    AND    ADMINISTRATORS.  449 

exists  in  Virginia  and  West  Virginia.1  In  Wisconsin,  the  fact 
that  there  is  no  person  to  sue  does  not  extend  the  time  to  more 
than  double  the  period  otherwise  prescribed  by  law.  In  North 
Carolina,2  the  time  during  which  any  contest  is  pending  relative 
to  the  probate  of  a  will  or  the  granting  of  administration  is 
excluded,  unless  an  administration  is  sooner  appointed,  and  even 
in  the  latter  case  such  time  is  excluded,  unless  by  law  a  claimant 
is  required  to  sue  him  within  a  shorter  period.  Except  in  these 
States,  no  statutory  provision  exists  relative  to  actions  in  favor 
of  deceased  claimants,  and  the  common-law  rule  prevails. 

SEC.  197.  When  Parties  in  Interest  may  set  up  the  Statute.  — 
While,  as  previously  stated,  an  executor  or  administrator  is  not 
bound  to  set  up  the  statute,  and  cannot  be  compelled  to  do  so, 
and  no  person  can  set  it  up  without  his  assent,  yet,  after  a  decree 
has  been  obtained,  any  person  interested,  who  takes  advantage 
of  the  decree,  may  set  up  the  statute  whether  the  executor 
assents  thereto  or  not.3  Before  a  decree  is  made  the  statute 
applies,  and  the  plaintiff  will  be  barred  on  lapse  of  the  appropri- 
ate length  of  time  after  administration.4  There  is  a  question  as 
to  how  far  an  executor  or  administrator  is  liable  as  for  a  devastavit 
if  he  allows  time  to  run  in  favor  of  a  debtor,  and  against  the 
estate  he  represents;  and  it  may  be  said  to  be  probable,  that 
where  such  a  case  results  from  undue  delay  on  the  part  of  the 
executor  or  administrator,  he  is  liable;5  but  this  point,  and  the 
question  which  may  arise  as  to  how  far  an  executor  or  adminis- 
trator is  at  liberty  to  revive  debts  barred  by  acknowledgment  or 
part  payment,  and  also  what  is  the  position  as  to  the  right  to 
contribution  of  a  co-executor  who  has  acknowledged  and  thus 
revived  a  debt  against  his  co-executors  and  the  estate,  if  judg- 
ment is  recovered  against  him  singly,  does  not  appear  to  be 
settled  by  the  authorities.6 

1  Appendix,  Wisconsin. 

'  Appendix,  North  Carolina. 

3  Briggs  v.  Wilson,  supra;  Fuller  v.  Redman,  26  Beav.  614. 

4  Higgins  v.  Shaw,  2  Dr.  &  War.  356;  Alsop  v.  Bell,  24  Beav.  451,  464;  Hol- 
lingshead's  Case,  1  P.  Wms.  742,  744;  Hayward  v.  Kinsey,  12  Mod.  573;  Bas- 
s'. East,  5  Hare,  348. 

6   Hayward  v.  Kinsey,  supra;  Williams,  Executors  (8th  ed.),  p.  1805. 
6  In  Peaslee  v.  Breed,  10  N.  H.  489,  it  was  held   that  a  joint  maker  of  a  note 
who  has  kept  the  debt  against  himself  revived  by  partial  payments  may,  on  the 

[STATS.    OF    T.tM.  29.] 


450  STATUTES   OF    LIMITATION.  [CHAP.   XVI. 

SEC.  198.  Right  of  Executor  to  set  off  Debt  barred.  —  An  exe- 
cutor may  retain  out  of  a  legacy  a  debt  due  from  the  legatee 
to  the  estate,  although  the  statute  has  run  upon  it,  and  an  admin- 
istrator may  set  off  such  a  debt  against  the  debtor's  share,  upon 
the  ground  that  one  of  the  next  of  kin  of  an  intestate  can  take 
no  share  of  the  estate  until  he  has  discharged  his  obligations  to 
it  in  full.1 

SEC.  199.  Rule  in  Equity  as  to  Claims  against  Decedent's 
Estate.  —  The  rule  seems  to  be  the  same  in  equity  as  at  law, 
that,  where  time  has  once  begun  to  run  against  a  debt  in  the 
testator's  lifetime,  it  does  not  cease  to  run  between  the  date  of 
his  death  and  the  appointment  of  an  executor  or  administrator.2 
But  in  cases  of  fraud  and  mistake,  courts  of  equity  hold  that  the 
statute  runs  from  the  discovery,  because  the  laches  of  the  plain- 
tiff commence  from  that  date.3  (a)  An  executor  cannot  protect 
himself  by  the  statute  from  payment  of  a  debt  due  from  himself 
to  his  testator  by  deferring  proof  of  the  will.  In  such  cases  the 
probate  will  be  considered  to  have  relation  to  the  testator's  death, 
and  the  debt  will  be  treated  as  assets  in  the  executor's  hands  at 
that  time.4     The  testator  may  revive  a  debt  barred  by  the  statute, 

payment  of  the  note,  obtain  contribution  from  the  other  maker,  notwithstand- 
ing that  the  payee's  claim  against  the  latter  was  barred. 

1  Courtenayz>.  Williams,  3  Hare,  559;  In  r^Cordwell's  Estate,  L.  R.  20  Eq.  644. 

s  Freake  v.  Cranefeldt,  3  My.  &  Cr.  499. 

3  Brooksbank  v.  Smith,  2  Y.  &  C.  58. 

4  Ingle  v.  Richards,  28  Beav.  366.  In  Scott  v.  Jones,  1  Russ.  &  My.  255,  it 
was  held  in  equity  that  a  notice  published  by  an  executor  in  a  newspaper  that 
he  will  pay  all  debts  justly  due  from  his  testator,  will  prevent  a  debt  from  being 
barred  by  the  statute;  but  this  doctrine  is  entirely  inconsistent  with  the  rule 
laid  down  in  Tanner  v.  Smart,  6  B.  &  C.  603,  and  is  not  believed  to  be  tenable; 
but  it  was  also  held  that  a  notice  published  by  an  executor  requesting  all  per- 
sons having  claims  against  the  estate  to  hand  them  in  before  they  are  submitted 
to  a  person  before  whom  persons  claiming  to  be  purchasers  are  to  be  examined 
relative  to  the  validity  of  their  claims,  will  not  remove  the  statute  bar.(^) 

Where     an    administratrix    sold  The    Rhode    Island   Pub.    Stats.,    c. 

real    estate    to    pay    debts,    and    after-  205,   §  9,  limiting   the    time  for  suing 

wards,  before  confirmation,  purchase!  executors  and  administrators  to  three 

it    from  those  who   bid   at  the  sale,  the  years,  does   not   apply  to  citing   them 

won-    held    barred,  by  an    unex-  to  appear    and    defend     a    suit    bepun 

plained    delay    of    seven    years,    from  apainst   the   decedent    in    his  lifetime. 

lling    her   purchase,    she  having  Sprague  v.   Greene.  20  R.   I.  153,  157. 

vhile  made   permanent  improve-  (/')   Under  22  &  23  Vict.  c.  35,  $  29,  the 

the    land,  and    paid  the  debts  mere   notice   and    making   of    a    claim 

with  the  proceeds  of  the  sale.     Gibson  against  the  estate  by  a  creditor  in  an- 

v.  Herriott^55  Ark.  85.  s we r  to  the  executor's  notice  does  noi 


§  199-] 


EXECUTORS    AND    ADMINISTRATORS. 


451 


by  the  provisions  of  his  will;  but  in  such  case  it  is  only  revived 
to  the  extent  and  in   the  manner  stated  in  the  will.1     Generally 

1  In  Williamson  v.  Naylor,  3  Y.  &  C.  208,  where  the  testator  provided  that 
one-fifth  of  his  estate  should  be  divided  among  certain  of  his  creditors  named 
in  a  schedule  to  his  will,  it  was  held  that  the  direction  so  given  prevented  the 


keep  his  claim  alive  so  as  to  prevent 
the  si  at ute  of  limitations  from  running. 
In  re  Stephens,  43  Ch.  D.  39,  44.  See 
BamDrick  v.  Bambrick,  157  Mo.  423; 
Barclay  v.  Blackinlon,  127  Cal.  189; 
Union  County  Sav.  Inst.  v.  Young,  161 
N.  Y.  23, 

When  the  Probate  Court  allows  a 
will  and  an  appeal  is  taken,  the  two 
years  allowed  by  statute  for  creditors 
to  sue  the  executor  begin  to  run  from 
the  day  when  the  probate  decree  is 
affirmed  on  appeal.  Smith  v.  Smith, 
175  Mass.  483.  The  running  of  the 
time  is  not  stopped  in  favor  of  a 
creditor  who  did  not  know  of  his  debt- 
or's death.  Beekman  v.  Richardson, 
150  Mo.  430.  The  allowance  by  the 
Probate  Court  of  a  claim  against  the 
testator's  estate  amounts  to  a  iudg- 
ment,  if  not  appealed  from,  and  the 
statute  of  limitations  does  not  apply 
thereto.  McCord  v.  Knowlton,  79 
Minn.  299;  In  re  Corrington,  124  111. 
363.  An  executor's  or  administrator's 
annual  or  partial  account  is  only  a 
judgment  de  bene  esse.  In  Illinois,  the 
allowance  of  a  claim  by  the  County 
Court  is  not  conclusive  against  the  heir 
excepting  to  the  administrator's  final 
report,  when  such  allowance  is  sub- 
ject to  impeachment  for  fraud  or  col- 
lusion in  a  court  01  equity.  Ibid  ; 
Schlink  v.  Maxton,  153  111.  447;  Bliss 
v.  Seaman,  165  111.  422;  Marshall  v. 
Coleman,  187  111.  556.  By  the  vol- 
untary filing  of  their  account  and  hav- 
ing, on  their  application,  a  citation 
issued  to  all  persons  interested,  execu- 
tors waive  the  statute  of  limitations, 
and  admit  their  liability  to  account  as 
existing,  and,  although  they  are  only 
technically  trustees  of  the  testator's 
property,  yet,  as  against  the  bene- 
ficiaries under  his  will,  the  statute  of 
limitations  cannot  be  availed  of  so  long 
as  such  trust  relation  exists.  In  re 
Lyth,  67  N.  Y.  S.  579. 

As  to  laches  as  affecting  creditors 
and  those  interested  in  the  distribu- 
tion of  a  decedent's  estate,  see  Har- 
ris v.  Starkey,  176  Mass.  445;  Mal- 
daner    v.    Beurhaus    (Wis.),   84  N.    W. 


25;  Roth  v.  Holland,  56  Ark.  633; 
Kipping  v.  Demint,  184  111.  165. 

Under  the  Mass.  Pub.  Stats.,  c.  136, 
§  II,  requiring  an  executor  or  a  i- 
ministrator  to  account  for  new  assets 
received  more  than  two  years  after  his 
giving  bond,  and  allowing  a  creditor 
to  sue,  as  against  the  same,  within  two 
years,  and  one  year  after  he  has  notice 
thereof,  not  everything  omitted  from 
the  inventory  by  any  cause,  such  as 
accident,  is  new  assets,  although  the 
omission  has  not  affected  the  other 
party's  conduct.  The  section  must  be 
given  a  serious  meaning  and  clearly 
does  not  include  all  tangible  property 
first  received  by  the  representative 
after  two  years,  though  not  included  in 
the  inventory.  Gould  v.  Camp,  157 
Mass.  358;  Quincy  v.  Quincy,  167 
Mass.  536.  As  to  failure  of  the  action 
for  defect  of  form  under  §  12  of  the 
above  chapter,  see  Taft  v.  Stow,  174 
Mass.  171.  Section  13  of  the  same 
chapter,  authorizing  the  retention  of 
assets  to  satisfy  claims  not  accruing 
within  the  two  years,  probably  relates 
only  to  the  retention  of  personal  assets. 
Clark  v.  Holbrook,  146  Mass.  366; 
Forbes  v.  Harrington,  171  Mass.  386. 

If  the  estate  is  solvent  and  consists 
wholly  of  land,  and  the  heirs,  to  avoid 
the  loss  resulting  from  a  forced  sale, 
authorize  the  executor  to  agree  with  a 
creditor  that,  if  he  delays  enforcing  his 
demand,  the  executor  will  pay  him  as 
fast  as  the  land  can  be  advantageously 
sold,  and  this  is  assented  to  by  the 
creditor,  and  is  to  his  advantage,  there 
being  no  other  interested  persons  ex- 
cluded from  the  arrangement,  it  is  not 
culpable  neglect  for  the  creditor  thus 
to  suffer  the  time  to  expire  within 
which  an  action  may  be  brought 
against  the  executor.  Knight  v.  Cun- 
ningham, 160  Mass.  580;  Ewing  v. 
King,  169  Mass.  97.  See  Morey  v. 
American  Loan  &  Trust  Co.,  149  Mass. 
253- 

In  Warner  v.  Morse,  149  Mass.  400, 
the  statute  of  limitations  was  held  not 
a  bar  to  a  bill  to  establish  an  equitable 
lien  in  real  estate  partly  paid  for  with 
the  funds  of  a  decedent's  estate. 


452  STATUTES   OF    LIMITATION.  [CHAP.   XVI. 

speaking,  the  statute  does  not  run  against  a  trust,1  and  executors 
and  administrators  are  treated  as  express  trustees,  in  whose  favor 
the  statute  does  not  run  to  bar  the  claims  of  legatees  or  dis- 
tributees of  the  estate.2  Therefore,  a  charge  created  by  will  upon 
the  real  estate  for  the  payment  of  the  testator's  debts  prevents 
the  running  of  the  statute  upon  such  debts  as  were  not  barred  in 
his  lifetime,3  but  it  does  not  revive  a  debt  which  was  barred  at 
the  time  of  his  decease;4  nor  does  a  charge  upon  the  personal 
estate  prevent  the  running  of  the  statute,  because,  as  the  law 
vests  the  personal  property  in  the  executor  or  administrator  for 
the  payment  of  the  decedent's  debts,  the  will  creates  no  special 
trust  for  that  purpose.5  But  if  a  charge  is  created  upon  both  the 
real  and  personal  estate  for  the  payment  of  debts,  as  if  the  testa- 
tor directs  that  his  debts  shall  be  paid  out  of  his  real  and  personal 
estate,  and  also  provides  that,  if  his  personal  estate  shall  be 
insufficient  to  pay  his  debts,  then  his  executors  may  enter  into 
the  receipt  of  the  rents  of  his  freehold  until  the  same  are  wholly 
paid,  it  has  been  held  that,  even  though  the  personal  estate  is 

operation  of  the  statute,  and  that,  as  a  specific  fund  was  appropriated  for  that 
purpose,  if  the  fund  proved  insufficient  to  pay  the  debts  in  full,  the  creditors 
must  lake  ratably.  See  also  Rose  v.  Gould,  15  Beav.  189.  In  Barton  v.  Tat- 
tersall,  1  Russ.  &  My  237  (see  also  Ward  v.  Painter,  5  Myl.  &  Cr.  298),  it  was 
held  that,  where  a  deceased  person  before  his  death  had  taken  the  benefit  of  the 
insolvent  acts,  the  rights  of  creditors  scheduled  under  the  insolvency  were  not 
affected  by  the  statute,  on  the  ground  that  the  liability  arose  in  respect  of  a 
lien  created  by  those  acts,  rather  than  by  virtue  of  any  premise  to  be  implied 
from  the  scheduling  of  the  debts. 

In  Sirdefield  v.  Price,  2  Y.  &  J.  73,  on  a  bill  by  a  creditor  against  an 
executor  for  payment  of  a  demand  and  an  account  of  the  testator's  estate,  the 
court,  entertaining  some  doubt  as  to  the  validity  of  the  debt,  retained  the  bill 
for  one  year,  with  liberty  to  the  plaintiff  to  bring  his  action;  and  the  statute 
having  taken  effect  between  the  filing  of  the  bill  and  the  decree,  the  court 
restrained  the  defendant  from  insisting  on  the  statute. 

1  Wren  v.  Gayden,  1  How.  (Miss.)  365;  Lafferty  v.  Turley,  3  Sneed  (Tenn.) 
157:  Bailey  v.  Shannonhouse,  1  Dev.  (N.  C.)  Eq.  416;  Hollis's  Case,  2  Vent. 
34.5;  Woodhouse  v.  Woodhouse,  L.  R.  8  Eq.  514;  Wedderburn  v.  Wedderburn, 
2  Keen,  722;  Obee  v.  Bishop,  r  De  G.  F.  &  J.  137;  Brittlebank  v.  Goodwin,  L. 
R.  5  Eq.  545. 

I.  iff   rty  v.  Turley,  mpra;  Picot  v.  Bates,  39   Mo.  292;    Knight  v.   Brawner, 
1  \  M  I.   1  .   Amos  v.  Campbell,  9  Fla.  187;  Smith  v.  Smith,  7  Md.  55. 

1  Pettingill  v,  Pettingill,  60  Me.  423. 

4   Hurke    v.   Jones,    2    V.    &    B.    275;     Hargreaves   v.    Michell,    6    Madd.    326; 
ies  v.  Wynne,  1  T.  &  R.  307. 

'-   I. vans  v.  Tweedy,    1    Beav.   55;  Scott  v.  Jones,  4  CI.  &   F.  382;  Freake  v. 
feldt,  3  Myl.  &  C\    199. 


§199-]  EXECUTORS    AND    ADMINISTRATORS.  453 

sufficient  to  pay  the  debts  in  full,  yet  a  trust  is  created  by  the 
will  for  the  payment  of  the  debts,  so  as  to  prevent  the  statute 
from  running  upon  them.1 

Legacies,  unless  expressly  so  provided  therein,  are  not  barred 
by  the  statute;3  but  a  presumption  that  the  legacy  is  paid  arises 
from  permitting  the  assets  to  be  distributed  without  claiming  the 
legacy,  and  is  a  good  ground  of  defense  by  way  of  answer.3  But 
this  presumption,  like  all  other  presumptions  relating  to  payment, 
is  liable  to  be  rebutted  by  proof  that  payment  has  not  in  fact 
been  made.  Courts  of  equity  are  never  active  in  extending  relief 
to  stale  demands,  except  upon  very  special  grounds.  Although 
the  statutes  generally  do  not  bind  those  courts  by  express  terms, 
so  as  to  enable  a  defendant  to  plead  them  in  bar  to  a  suit  for  a 
legacy,  yet,  for  the  sake  of  convenience,  they  have  adopted  their 
provisions  by  analogy,  in  many  instances  in  which  fraud  makes 
no  ingredient.  Upon  this  principle  it  has  been  determined  that 
a  legacy  not  demanded  for  forty  years  should  be  considered  as 
prim. 1  facie  satisfied;  but  this  presumption  is  not  so  absolute  as 
to  support  a  demurrer  to  a  bill  for  such  a  legacy;  for  the  point 
of  satisfaction  is  an  inference,  only  arising  from  the  length  of 
time  which  has  elapsed  from  the  period  the  legacy  became  paya- 
ble, and  which  may  be  repelled  by  clear,  strong,  and  relevant  evi- 
dence. If,  then,  the  merits  of  the  question  were  allowed  to  be 
decided  in  a  summary  way  upon  a  demurrer,  the  legatee  would 
be  precluded  from  the  opportunity  of  producing  such  testimony.4 

1  Crallan  v.  Oulton,  3  Beav.  1;   Moore  v.  Petchell,  22  Beav.  172. 

9  Sparhawk  v.  Buell,  9  Vt.  41;  Thompson  v.  M'Gaw,  2  Watts  (Penn.)  161; 
Cartwright  v.  Cartwright,  4  Hayw.  (Tenn.)  134;  Perkins  v.  Cartmell,  4  Harr. 
(Del.)  270;  Irby  v.  M'Crae,  4  Desaus.  (S.  C.)  422;  Doebler  v.  Snavely,  5  Watts 
(Penn.)  225;  Souzer  v.  De  Meyer,  2  Paige  (N.  Y.)  574;  Norris's  Appeal,  71 
Penn.  St.  106;  Kent  v.  Dunham,  ro6  Mass.  586;  Wood  v.  Ricker,  1  Paige  (N. 
Y)  616;  Smith  z.  Kensington,  42  Barb.  (N.  Y)  75;  Brooks  v.  Lynde,  7  Allen 
(Mass.)  64;  McCartee  v.  Camel,  1  Barb  (N.  Y.)  Ch.  455;  Anon.,  2  Freem.  22, 
pi.  20;  Parker  v.  Ash,  I  Vern.  257.  But  now  in  England,  under  Stat.  3  &  4 
Wm.  IV.,  c.  27,  legacies  are  barred  in  twenty  years. 

3  Higgins  v.  Crawford,  2  Ves.  Jr.  572;  Andrews  v.  Sparhawk,  13  Pick.  (Mass.) 
393;  Kingman  v.  Kingman,  121  Mass.  249;  Skinner  v.  Skinner,  1  J.  J.  Marsh. 
(Ky.)  594;  Carr  v.  Chapman,  5  Leigh  (Va.)  164;  Sager  v.  Warley,  Rice  (S.  C.) 
Ch.  26;  Hayes  v.  Goode,  7  Leigh  (Va  )  452;  Pickering  v.  Stamford,  2  Ves.  Jr. 
582  Grenfell  v.  Girdleslone,  2  Y.  &  C.  662;  Prior  v.  Horniblow,  id.  200;  Jones 
v.  Turberville,  2  Ves.  Jr.  11;  Baldwin  v.  Peach,  r  Y.  &  C.  453;  Brown  v.  Clax- 
ton,  3  Sim.  225;  Campbell  v.  Graham,  1  Russ.  &  Myl.  453. 

4  See  Jones  v.  Turberville,  2  Ves.  Jr.  11;   Pickering  v.  Stamford,  id.  272.     In 


454  STATUTES   OF    LIMITATION.  [CHAP.   XVI. 

In  England,  under  the  statute  of  3  &  4  Win.  IV.,  it  is  held  that, 
when  an  executor  is  called  to  account  for  moneys  which  were 
bequeathed  to  him  upon  certain  trusts,  and  which  have  been 
severed  by  the  executor  from  the  testator's  personal  estate,  and 
the  interest  of  which  has  been  for  a  time  applied  upon  the  trusts 
of  the  will,  so  that  the  fund   has  ceased  to  bear  the  character  of 

Mootresor  v.  Williams,  MSS.  tS23,  March  3,  April  16,  and  May  7,  which  came 
before  Sir  John  Leach,  V.  C  ,  upon  exceptions  to  the  Master's  report,  one 
Duval,  a  lessee  under  a  lease  from  the  Portland  family  for  ninety-nine  years 
from  1765,  by  his  will  dated  December,  17S9,  proved  3d  May,  1794,  charged  his 
general  estate  with  legacies,  subject  to  which  the  lease  passed  to  his  son  as 
executor  and  residuary  legatee.  Duval,  the  son,  in  1808,  granted  an  underlease, 
which,  after  various  mesne  assignments,  came  to  Wigan,  who  obtained  a  further 
term  of  fourteen  years  from  Duval,  and  then  assigned  the  under  lease  to  the 
defendant,  who  contracted  with  General  Montresor,  the  plaintiff,  for  the  sale 
of  the  leasehold  premises  and  the  furniture.  Among  other  objections  10  the 
ti tie  referred  to  the  Master,  it  was  insisted  that  the  lease  being  charged  with 
the  legacies,  demands  in  respect  of  these  might  be  made  upon  the  purchaser. 
Releases  were  subsequently  procured.  When  the  cause  came  on  upon  the 
exceptions  to  the  Master's  report,  his  Honor  said:  "  These  releases  are  unnec- 
essary. The  vendor  has  no  right  to  them.  Even  without  them,  I  should 
have  held  that,  where  an  executor,  twenty  years  after  the  death  of  the  testator, 
sells  a  leasehold  charged  by  the  will  with  legacies,  and  no  demand  has  during 
all  that  time  been  made  upon  it,  there  was  evidence  that  the  charges  had  been 
paid."  In  Campbell  v.  Graham,  1  Russ.  &  Myl.  453,  2  CI.  &  Fin.  429,  Lord 
Brougham,  C,  observed:  "A  party  buying  a  legacy  of  £500  for  £25,  after 
seven  and  twenty  years  have  elapsed,  and  then  allowing  four  years  more  to 
pass  before  filing  his  bill,  making  altogether  alachesof  more  than  thirty  years, 
in  my  apprehension  has  himself  to  blame,  if  he  finds,  when  he  comes  into  this 
court,  that  his  remedy  is  gone.  4  Barr.  1962;  Oswald  v.  Leigh.  1  T.  R.  270; 
Fladong  v.  Winter,  19  Ves.  196;  Wynne  v.  Waring,  cited  in  previous  case; 
Hercy  v.  Dinwoody,  4  Bro.  C.  C.  257;  Smith  v.  Clay,  3  id.  639,  n.;  Jones  v. 
Turbeville,  and  Pickering  v.  Stamford,  supra.  Upon  the  principle  of  some  of 
these  cases,  therefore,  and  upon  the  authority  of  others,  admitting  nevertheless 
that  no  one  has  gone  so  far  as  to  say  that  mere  lapse  of  time  can  be  pleaded  as 
a  bar,  and  stating  also  that  I  can  find  no  case  in  which  the  precise  period  of 
seven  and  twenty  years  has  been  held  sufficient  to  shut  the  doors  of  a  court  of 
equity  against  such  a  demand  as  too  stale  to  be  enforced  —  upon  the  reasoning 
and  principle  of  some  of  these  cases,  and  the  actual  decision  in  others,  I  am 
disposed  to  hold  that  the  plaintiff  has  come  too  late,  and  that  the  doors  of  this 
rourt  ought  not  now  to  be  thrown  open  to  him,  inasmuch  as,  to  use  Lord 
Camden's  expression,  the  court  cannot  be  called  into  activity  to  aid  a  demand, 
I,-  it  for  a  legacy  or  for  a  debt,  unless  with  good  faith  and  with  good  conscience 
onable  degree  of  <iiligence  shall  have  been  used."  Presumptions  of  pay- 
ment of  legacies  will  noL  be  made  from  mere  lapse  of  time,  where  payment  by 
thr  exe<  tttor  woul  I  be  out  of  the  ordinary  course.  Lee  v.  Brown,  4  Ves.  362; 
1'iior  v.   Ilorniblow,  2  Y.  &  C.  200. 


§   I99-]  EXECUTORS   AND   ADMINISTRATORS.  455 

a  legacy,  and  has  assumed  that  of  a  trust  fund,  the  action  to 
compel  an  account  is  treated  as  a  suit  for  a  breach  of  trust,  and 
not  as  a  suit  for  a  legacy,  and  consequently  is  not  within  the 
statute,1  as  it  is  held  that  that  statute  does  not  apply  to  cases  of 
express  trust.2 

1  Estate  of  Brown,  8  Phila.  (Penn.)  197;  Marshfield  v.  Ctieever,  3  Dine  Abr. 
503;  Sawyer  v.  Smith,  5  id.  405;  Pedrick  v.  Saunderson,  5  id.  403;  Bass  v. 
Bass,  8  Pick.  (Mass.)  187;  Denny  v.  Eddy,  22  id.  533;  Ravenscroft  v.  Frisby,  1 
Coll.  16;  Phillip  v.  Munnings,  2  Myl.  &  Cr.  309.  In  re  Powers,  124  N.  Y.  361, 
it  was  held  that  to  render  a  provision  in  a  will  effectual  to  furnish  a  greater 
security  than  that  given  by  law  for  the  payment  of  debts  in  due  course  of 
administration,  by  charging  them  upon  the  real  estate  of  the  testator,  the  pur- 
pose must  quite  clearly  appear;  a  mere  direction  to  pay  debts  out  of  the  prop- 
erty will  not  suffice.     See  hi  re  McComb,  117  N.  Y.  378. 

2  Watsjn  v.  Saul,  1  Giff.  188;  King  v.  Dennison,  1  V.  &  B.  260;  Dix  v.  Bur- 
ford,  19  Beav.  409;  Butler  v.  Carter,  L.  R.  5  Eq.  276;  Edmunds  v.  Waugh,  L. 
R.  1  Eq.  418;  Dinsdale  v.  Dudding,  1  Y.  &  C.  265;  Brougham  v.  Poulett,  19 
Beav.  119;  Commissioners  v.  Wybrants,  2  Jones  &  L.  182;  Jacquet  v.  Jacquet, 
27  Beav.  332;  Play  fair  v.  Cooper,  17  id.  187;  Mason  v.  Broadbent,  33  id.  296; 
Tyson  v.  Jackson,  30  id.  384;  Hodgson  v.  Bibby,  32  id.  221;  Dickinson  v.  Teas- 
dale,  31  id  511;  Round  v.  Bell,  30  id.  121;  Davenport  v.  Stafford,  14  id.  319; 
Downes  v.  Bullock,  25  id.  54;  Smith  v.  Acton,  26  id.  210;  Proud  v.  Proud,  32 
id.  234;  Gough  v.  Bult,  16  Sim.  323;  Francis  v.  Grover,  5  Hare,  39;  Roch  v. 
Callen,  6  id.  531;  Lewis  v.  Duncombe,  29  Beav.  175;  Hunter  v.  Nockolds.  1 
Mac.  &  G.  640,  683;  Snow  v.  Booth,  2  K.  &  J.  132;  Cox  v.  Dolman,  2  De  G.  M. 
&.  G.  592;  Burrowes  v.  Gore,  6  H.  L.  Cas.  907;  Young  v.  Waterpark,  13  Sim. 
199. 


456 


STATUTES    OF    LIMITATION. 


[CHAP.   XVII. 


CHAPTER  XVII. 

Trusts  and  Trustees. 


Sec.  200.  General  Rule. 
201.   ExpressTrusts. 

Assignees  in  Bankruptcy, 
Insolvency,  etc. 

Cestui  que  Trust  in  Posses- 
sion. 

Guardians. 

Executors  as  Trustees. 

Executor  or  Administrator  of 
a  Trustee. 

Power  to  sell  Property. 

Effect  on  Cestui  que  Trust 
when  Trustee  is  barred. 
Sale  of  Trust  Estate. 

Factors  and  Agents. 

Parlners. 

Acknowledgment  by  one 
Partner. 


202. 

203. 

204. 
205. 
206. 

207. 

208. 


209 
210 

211 


Sec.  212.  How  Trustee  may  put  Stat- 
ute in  Operation  in  his 
Favor. 

Exceptions  to  the  Rule  rela- 
tive to  Express  Trusts. 

Stale  Trusts  not  favored  in 
Equity. 

Constructive  or  Resulting 
Trusts. 

216.  Mistake    of    Trustee  in  Pos- 
session. 

217.  Funds  of  Societies  vested  in 
Trustees. 

The  Liability  of  Trustee  for 
Breach  of  Trust  creates 
Trust  Debt. 

Vendor  and  Vendee  of  Land. 
220.  Purchaser  of  Property  for 
Benefit  of  another. 


213. 
214. 

215. 


218. 


219. 


SEC.  200.  General  Rule.  —  It  is  well  settled  that  a  subsisting, 
recognized,  and  acknowledged  trust,  as  between  the  trustee  and 
cestui  que  trust,  is  not  within  the  operation  of  the  statute  of  limi- 
tations.1    But  this  rule  must  be  understood  as  applying  only  to 

1  Bridgman  v.  Gill,  24  Beav.  302;  Attorney-General  v.  Fishmongers'  Co.,  5 
My.  &  Cr.  16;  Wedderburn  v.  VVedderburn,  4  id.  41;  Coate's  Estate,  2  Pars. 
Sel.  Cas.  (Penn.\  258;  Maury  v.  Mason,  8  Port.  (Ala.)  211;  Shibla  v.  Ely,  6  N. 
J.  Eq.  181;  Lyon  :'.  Marclay,  1  Watts  (Penn.)  271;  Bertine  v.  Varian,  1  Edw. 
(N.  Y.)  Ch.  343;  Redwood  v.  Reddick,  4  Munf.  (Va.)  222;  Evarts  v.  Nason,  it 
Vt.  122;  Lexington  v.  Lindsey,  2  A.  K.  Mar.  (Ky.)  443;  Chaplin  v.  Givens,  1 
Rice  (S.  C.)Ch.  132;  Pinson  v.  Ivey,  1  Yerg.  (Tenn.)  296;  Pinkerton  v.  Walker, 
3  Hayw.  (Tenn.)  221;  Kutz's  Appeal,  40  Penn.  St.  90;  West  v.  Sloan,  3  Jones 
(N.  C.)  Eq.  102;  Willard  v.  Willard,  56  Penn.  St.  119;  Bryant  v.  Puckett,  3 
Havw.  (Tenn.)  252;  Jones  v.  Person,  2  Hawks  (N.  C.)  269;  State  v.  McGowen, 

2  I  red.  (N.  C.)  Eq.  9;  Armstrong  v.  Campbell,  3  Yerg.  (Tenn.)  201;  Cook  v. 
Williams,  2  N.  J.  Eq.  209;   Pugh  v.  Bell,  1  J.  J.  Mar.  (Ky  )  399;  Oliver  v.  Piatt, 

3  How.  (U.  S.)  333;  Thomas  v.  Floyd,  3  Litt.  (Ky.)  177;  Prevost  v.  Gratz,  6 
Wheat.  (".  S.)  481;  Haynie  v.  Hall,  5  Humph.  (Tenn.)  290;  Boone  v.  Chiles,  10 
Pet  MI.  S.)  177;  Simms  v.  Smith,  11  Ga.  195;  Decouche  v.  Savetier,  3  Johns. 
(N.  Y.i  Ch.  190;  Wilmerding  v.  Russ,  33  Conn.  67;  Piatt  v.  Oliver,  2  McLean 
(U.  S.  C.  C.)  2'. 7;  Coster  v.  Murray,  5  Johns.  (N.  Y  )  Ch.  522;  Wood  v.  Wood,  3 
Ala.  756.  Tli'-  Statute  cannot  Ik-  pleaded  to  a  remedy  given  by  the  legislature 
to  enforce  a  trust.     Belhune  v.  Dougherty,  30  Ga,  770. 


§  200].  TRUSTS    AND    TRUSTEES.  457 

those  technical  and  continuing  trusts  which  are  alone  cognizable 

It  is  equally  true  that  fraud  as  well  as  trust  is  not  within  the  statute.  Kane 
v.  Bloodgood,  7  Johns.  (N.  Y.)  Ch.  90,  122;  Hunter  v.  Spotswood,  1  Wash.  (Va.) 
145 

A  purchaser  for  a  valuable  consideration,  if  affected  with  notice,  becomes  a 
trustee  for  the  true  owner,  and  will  not  be  protected  by  the  statute.     Wamburzee 
v.  Kennedy,  4  Desau.  (S.  C.)474;  Thayer  v.  Cramer,  r  McCord  Ch.  (S.  Car.)   in: 
398. 

As  a  rule,  the  statute  does  not  operate  in  cases  of  fraud  and  of  trusts;  but  as 
soon  as  the  fraud  is  discovered  it  commences  to  run.  Wamburzee  v.  Kennedy, 
4  Desau.  (S.  C.)  474;  Payne  v.  Hathaway,  3  Vt.  212;  Sweat  v.  Arrington,  2 
Hayw.  (N.  C.)  I2q.  The  statute  does  not  reach  to  matters  of  direct  trust,  as 
between  trustee  and  cestui  que  trust,  Coster  v.  Murray,  5  Johns.  (N.  Y.)  Ch. 
531;  Turner  v.  Debell,  2  Marsh.  (Ky.)  384;  nor  to  parties  standing  in  the  rela- 
tion of  principal  and  agent,  or  factor,  Murray  v.  Coster,  supra.  The  statute 
cannot,  either  in  a  court  of  law  01  equity,  protect  a  trustee  against  the  demands 
of  his  cestui  que  trust,  Thomas  v.  White,  3  Litt.  (Ky.)  177;  Lexington  v.  Lind- 
say, 2  Marsh.  (Ky.)  445;  or  of  persons  claiming  under  him.  Redwood  v.  Rid- 
dick,  4  Munf.  (Va.)  222.  So  long  as  the  trust  subsists,  the  cestui  que  trust 
cannot  be  barred.  The  cestui  que  trust  can  only  be  barred  by  excluding  the 
estate  of  the  trustee  Cholmondeley  v.  Clinton,  2  Meriv.  360.  Prevost  v.  Gratz, 
6  Wheat.  (U.  S.)  497;   Hemenway  v.  Gates,  5  Pick.  (Mass.)  321. 

A  legacy  of  trust  is  not  within  the  statute,  but  after  a  length  of  time  pay- 
ment will  be  presumed;  yet  such  presumption  may  be  rebutted  by  facts  con- 
vincing to  a  jury.  Durdon  v.  Gaskill,  2  Yeates  (Penn.)  268.  In  Van  Rhyn  v. 
Vincent,  1  McCord  (S.  C.)  Ch.  310,  the  rule  was  held  to  apply  only  to  technical 
equitable  trusts,  and  not  to  constructive  trusts  of  which  a  court  of  law  as  well 
as  a  court  of  equity  have  jurisdiction. 

If  a  bona  fide  purchaser  without  notice,  who  is  a  trustee  by  implication,  is  to 
be  affected  by  an  equity,  that  equity  must  be  pursued  within  a  reasonable  time. 
Shaver  v.  Radley,  4  Johns.  (N.  Y.)  Ch.  310;  Thompson  v.  Blair,  3  Murph.  (N. 
C.)  583. 

A  trustee  cannot  aavil  himself  of  the  statute  without  plain,  stiong,  and 
unequivocal  proof  of  his  renunciation  of  the  trust.  Boteler  v.  Allington,  3  Atk. 
453.  459-  The  possession  of  the  cestui  que  trust  is  not  adverse  to  the  title  of  the 
trustee,  nor  is  the  possession  of  the  trustee  adverse  to  his  cestuis.  Smith  v. 
King,  16  East,  283;  Keene  v.  Deardon,  8  id.  248;  Smith  v.  Wheeler,  1  Ventr. 
128. 

A  cestui  que  trust  is  "  tenant  at  will  "  to  the  trustee,  and  the  possession  of  the 
cestui  que  trust  is  "  the  very  possession  in  consideration  of  law  of  the  trsutee." 
Earl  of  Pomfret  v.  Lord  Windsor,  2  Ves.  472:  Lethieullier  v.  Tracy,  3  Atk.  728; 
Dighton  v.  Greenvil,  2  Ventr.  329.  No  conveyance  by  the  cestui  que  trust  can 
work  a  forfeiture  of  the  legal  estate  of  the  trustee;  it  has  been  held  that  a  fine 
or  other  alienation  by  cestui  que  trust  for  lift  does  not  work  a  forfeiture  of  his 
life  estate.  Sanders  on  Uses,  201;  Lethieullier  v.  Tracy,  3  Atk.  729.  The  rule 
that  trust  and  fraud  are  not  within  the  statute  of  limitations  is  subject  to  this 
modification,  that  if  the  trust  is  constituted  by  the  act  of  the  parties,  the  pos- 
session of  the  trustee  is  the  possession  of  the  cestui  que  trust,  and  no  length  of 
such  possession  will  bar;  but  if  a  trust  is  constituted  by  the  fraud  of  one  of  the 


458  STATUTES    OF    LIMITATION.  [CHAP.    XVII. 

in  a  court  of  equity;1  and  trusts  which  arise  from  an  implication 

parties,  or  arises  from  a  decree  of  a  court  of  equity,  or  the  like,  the  possession 
of  the  trustee  becomes  adverse,  and  the  statute  will  run  from  the  time  the 
fraud  is  discovered.  Thompson  v.  Blair,  3  Murph.  (N.  C.)  583;  Van  Rhyn  v. 
Vincent,  1  McCord  (S.  C.)  Ch.  310. 

An  executor  entering  on  lands  of  the  estate  of  his  testator,  and  occupying 
them,  is  to  be  considered  as  holding  ihem  in  trust  for  the  heirs  or  devisees 
unless  he  proves  that  he  held  adversely  with  notice  to  the  heirs  or  devisees;  in 
which  case  the  proof  lies  on  him  to  establish  the  claim  at  law,  on  an  issue 
directed.  Ramsay  v.  Deas,  2  Desau.  (S.  C.)  233.  The  statute  is  not  allowed  to 
run  in  favor  of  a  man  who  was  employed  to  act  as  agent,  but  purchased  for 
himself.  He  is  considered  as  a  trustee,  and  his  employer  shall  be  entitled  to 
the  benefit  of  the  purchase.  Hutchinson  v.  Hutchinson,  4  Desau.  (S.  C.)  77. 
See  Bell  v.  Levers,  3  Yeates  (Penn.)  26.  In  Starr  v.  Starr,  2  Ohio,  321,  the  court 
said:  "  That  this  trust  was  not  formerly  declared  or  expressed  between  the 
parties  is  no  reason  why  it  cannot  exist.  The  law  is  not  to  be  evaded  by  con- 
trivances of  this  nature.  A  trust  tacitly  created  is  more  difficult  to  reach  than 
one  that  is  expressed;  but  where  it  is  ascertained  the  consequence  is  attached 
to  it."  The  general  rule  is,  that  after  a  sale  of  land,  and  before  a  conveyance 
of  the  legal  title,  the  vendor  is  the  trustee  of  the  vendee,  and  the  statute  will 
have  no  operation.  But  where  the  vendor  disavows  the  trust,  and  after  having 
delivered  possession  to  the  vendee  makes  a  lease  to  a  third  person  in  opposi- 
tion to  the  litle  of  the  vendee,  and  the  lessee  enters  and  holds  possession,  the 
jury  may  presume  a  disseisin;  and  if  the  vendee  suffers  twenty-one  years  to 
elapse  without  prosecuting  his  claim,  it  will  be  barred  by  the  act  of  limitations. 
Pipher  v.  Lodge,  4  S.  &  R.  (Penn.)  310.  But  to  prevent  length  of  time  from 
barring  a  claim,  on  the  ground  that  the  possession  of  the  defendant  was 
fiduciary,  such  possession  must  have  been  fiduciary  as  to  the  plaintiff  or  those 
under  whom  he  claims;  its  being  fiduciary  as  to  any  other  person  is  not  suffi 
cient.     Spotswood  v.  Dandridge,  4  Hen.  &  M.  (Va.)  139. 

1  Hay  ward  v.  Gunn,  82  III.  385;  Partridge  v.  Wells,  30  N.  J.  Eq.  176;  Prewett 
v.  Buckingham,  28  Miss.  92;  Tinnen  v.  Mebane,  10  Tex.  246;  Paff  v.  Kinney, 
1  Bradf.  (N.  Y.  burr.)  1;  Cooke  v.  McGinniss,  M.  &  Y.  (Tenn.)  361;  Carter  v. 
Bennett,  6  Fla.  214;  Presley  v.  Davis,  7  Rich.  (S.  C.)  Eq.  105;  Maury  v.  Mason, 
8  Port.  (Ala.)  211;  Zacharias  v.  Zacharias,  23  Penn.  St.  452;  Fox  v.  Cash,  11 
id.  207;  Heckert's  Appeal,  24  id.  482;  Kane  v.  Bloodgood.  7  Johns.  (N.  Y.)  Ch. 
90;  Sayles  v.  Tibbitts,  5  R.  I.  79;  Thomas  v.  Brinsfield,  7  Ga.  154;  Finney  v. 
Cochran,  1  W.  &  S.  (Penn.)  112;  Raymond  v.  Simonson,  4  Blackf.  (Ind.)  77; 
While  v.  White,  1  Md.  Ch.  53;  Johnson  v.  Smith,  27  Mo.  591;  Lexington,  etc., 
R.  Co.  v.  Bridges,  7  B.  Mon.  (Ky.)  556;  McDonald  v.  Sims,  3  Ga.  383.  The 
principle  that  the  statute  will  not  protect  trustees  applies  only  to  express  or 
technical  trusts.  Farnam  v.  Brooks,  9  Pick.  (Mass.)  212;  Hayman  v.  Keally,  3 
Cranch  C.  C.  325;  Bank  v.  Beverly,  1  How.  (U.  S.)  134;  Pugh  v.  Bell,  1  J.  J. 
Mar.  (Ky.)  398;  Harris  v.  King,  16  Ark.  122.  In  Kutz's  Appeal,  40  Penn.  St. 
go,  it  was  held  that  where  money  is  held  in  trust,  and  therefore  not  recoverable 
at  law  I. ut  f>nly  in  equity,  the  statute  will  not  run.  In  Coster  v.  Murray,  5 
|ohns.  (N.  Y.)  Ch.  ?22,  where  the  defendant  received  goods  consigned  to  him 
on  his  own  accounl  and  the  account  of  the  plaintiff,  who  paid  one-third  of  the 
]<rice,  and  was  to  receive  one-third  '>f  the  proceeds;  and  the  defendant,  having 


§  200.]  TRUSTS   AND   TRUSTEES.  459 

of  law,  or  constructive  trusts,  are  not  within  the  rule,  but  are 
subject  to  the  operation  of  the  statute,1  unless  there  has  been  a 

sold  the  goods,  refused  to  account  to  the  plaintiff  for  his  share,  and  set  up  the 
statute  to  bar  the  claim,  this  was  held  not  a  dealing  between  merchant  and 
merchant,  within  the  exception  in  the  statute,  but  the  defendant  was  held  to  be 
the  factor  of  the  plaintiff,  and  his  liability  a  trust  within  the  statute.  See  also 
White  r.  Leavitt,  20  Tex.  703.  In  Hutchinson  z;  Hutchinson,  4  Desau.  (S.  C.) 
77,  where  an  agent  for  the  purchase  of  land  took  a  title  in  his  own  name  for 
the  benefit  of  the  principal,  it  was  held  that  the  statute  did  not  run  against  the 
principal's  claim  to  the  land.  In  Van  Rhyn  v.  Vincent,  4  McCord  (S.  C.)  310, 
A.  sent  abroad  goods  by  B.,  who  having  died,  the  goods  were  disposed  of  by 
an  agent,  and  the  proceeds  were  transmitted  to  C,  who,  it  seems,  had  no  pre- 
vious connection  with  A.,  and  it  was  held  that  C.  was  not  trustee  for  A.,  so  as 
to  relieve  A.'s  demand  against  him  from  the  statute  of  limitations.  But  in  Mc- 
Donald v.  May,  1  Rich.  Eq.  (S.  C.)  91,  where  a  person  purchased  land  at  a 
sheriff's  sale  under  an  agreement  to  hold  the  property  for  the  benefit  of  the 
debtor,  it  was  held  that  a  technical  trust  was  thereby  created  upon  which  the 
statute  did  not  run.  But  it  seems  that  a  purchase  under  such  an  agreement, 
the  debtor  to  remain  in  possession  and  refund  the  money  at  an  indefinite  time, 
does  not  create  a  continuing  trust  which  bars  the  statute.  Hughes  :•.  Hughes, 
Cheves  (S.  C.)  33. 

Where  a  sale  of  an  infant's  property  was  made  by  a  master  under  a  decree 
by  which  he  was  directed  to  sell,  and  apply  the  interest,  and  as  much  as  might 
Le  necessary  of  the  principal,  of  the  proceeds,  to  the  support  of  the  infant,  it 
was  held  that  he  was  a  trustee,  and  that  the  statute  did  not  run  against  a  suit, 
by  the  infant,  for  an  account,  until  he  had  denied  his  liability.  Houseal  v. 
Gibbes,  Bailey  (S.  C.)  Ch.  482.  So  where  a  person  gave  to  his  children,  by 
deed,  property,  real  and  personal,  to  be  enjoyed  by  them  after  his  death,  him 
self  retaining  a  life  estate,  it  was  held  that  he  was  a  trustee  for  the  children, 
and  could  not  set  up  the  statute  of  limitations  against  them,  in  consequence  of 
his  possession.     Dawson  v.  Dawson,  Rice  (S.  C.)  Ch.  243. 

In  Armstrong  7-.  Campbell,  3  Yerg.  (Tenn.)  201,  A.  being  the  owner  of  land 
warrants,  he  and  B.  entered  into  an  agreement  and  covenants  with  each  other, 
by  which  B.  was  to  find  the  land,  and  was  authorized  to  sell  and  convey  the 
same,  and  to  receive  to  his  own  use  one-third  of  the  purchase  money,  or  other 
consideration  received  for  the  same,  and  he  covenanted  to  pay,  deliver,  and 
transfer  the  other  two-thirds  to  A.,  and  it  was  held  that  this  transaction  con- 
stituted B.  a  trustee  in  relation  to  the  interest  of  A.  by  express  contract,  and 
that,  though  there  were  concurrent  remedies  upon  the  contract  at  law  and  in 
equity,  it  was  not  within  the  statute.  In  Lafferty  v.  Turley,  3  Sneed  (Tenn.) 
157,  it  was  held  that  where  there  is  a  concurrent  remedy  at  law  the  equitable 
bar  from  lapse  of  time  is  generally  applied  by  analogy  to  the  statute  of  limita- 
tions, but  where,  as  in  cases  of  express  trust,  the  matter  is  alone  cognizable  in 
equity,  the  bar  may  be  applied  according  to  the  merits  of  the  case. 

1  Edwards  v.  University,  1  D.  &  B.  (N.  C.)  Eq.  325;  Walker  v.  Walker,  16  S. 
.t  R.  (Penn.)  379;  Buchan  v.  James,  Speers  >S.  C.)  Ch.  375.  "  By  the  whole 
current  of  modern  authorities,"  says  Hinman,  C.  J.,  in  Wilmerding  v.  Russ, 
33  Conn.  77,  "  implied  trusts  are  within  the  statute,  and  the  statute  begins  to 
jun  from  the  time  the  wrong  was  committed,   by   which  the  person  becomes 


460  STATUTES   OF   LIMITATION.  [CIIAL   XVII. 

fraudulent  concealment  of  the  cause  of  action,1  and  the  statute  is 
as  complete  a  bar  in  equity  as  at  law.  Courts  of  equity  have 
always  refused  to  assist  a  person  who  has  slept  upon  his  rights 
and  shows  no  excuse  for  his  laches  in  asserting  them,  and  this 
is  so,  independent  of  any  statute  of  limitations.  Laches  and 
neglect  always   have   been   discountenanced    in   equity. 2     When 

chargeable  as  trustee  by  implication."  Kane  v.  Bloodgood,  supra;  Robinson 
v.  Hook,  4  Mas.  (U.  S.)  152.  In  Swindersine  v.  Miscally,  Bailey  (S.  C.)  Ch. 
304,  this  rule  was  applied  where  an  administrator  became  a  purchaser  at  his 
own  sale  as  administrator,  for  a  fair  price,  and  afterwards  mortgaged  the  prop- 
erty to  secure  his  private  debts.  The  court  held  that  ihe  mortgagee,  being  a 
trustee  by  implication  only,  might  avail  himself  of  the  statute.  Sn  in  Haynie 
v.  Hall,  5  Humph.  (Tenn.)  290,  where  a  father  received  a  legacy  for  his  minor 
child,  it  was  held  that  by  operation  of  law  he  became  a  trustee  in  respect 
thereto,  and  might  avail  of  the  slatute.  In  Baubien  v.  Baubien,  23  How.  (U. 
S.)  190,  the  court  says  "  In  cases  of  an  implied  trust  to  be  raised  by  evidence, 
equity  obeys  the  statute."  McDowell  v.  Goldsmith,  6  Md.  319;  Lloyd  v.  Cur- 
rin,  3  Humph.  (Tenn.)  462;  Murdock  v.  Hughes,  15  Miss.  219;  Armstrong  v. 
Campbell,  3  Yerg.  (Tenn.)  201;  Harlow  v.  Dehon,  111  Mass.  195;  Manion  v. 
Titsworth,  18  B.  Mon.  (Ky.)  582;  Haynie  v.  Hall,  5  Humph.  (Tenn.)  290;  Shep- 
pards  v.  Turpin,  3  Gratt.  (Va.)  373;  Cuyler  v.  Bradt,  2  Cai.  Cas.  (N.  Y.)  326. 
The  time  generally  fixed  for  enforcement  of  trust  claims  has  been  twenty  years, 
but  in  some  cases  a  shorter  period  is  sufficient,  and  in  others  a  longer  one  will 
not  protect  the  trustee.  In  Phillips  v.  Holman,  26  Tex.  276,  it  was  held  that  a 
contract  wherein  P.  assigned  and  transferred  to  H.  certain  stock  certificates,  in 
trust  to  be  disposed  of  according  to  H.'s  best  judgment,  P.  to  receive  there- 
upon the  original  cost  and  half  the  profits  realized,  with  no  stated  time  for  per- 
formance and  account,  did  not  create  that  kind  of  "  technical  and  continuing  " 
trust  which  cannot  be  affected  by  the  statute  of  limitations,  and  it  devolved  on 
H.  to  perform  the  obligation  and  account  within  a  reasonable  time.  Lapse  of 
time  does  not  bar  express  trusts;  especially  where  the  trustee  and  those  claim- 
ing under  him  have  not  asserted  an  adverse  claim  above  two  years,  although 
the  cestui  que  trusthas  neglected  to  claim  the  benefit  of  the  trust  for  nearly  forty 
years  before.  Pinson  v.  Ivey,  1  Yerg.  (Tenn.)  296.  In  Alabama  it  is  held  that 
the  lapse  of  twenty  years  without  any  acknowledgment  of  the  existence  of  the 
trust  will  constitute  a  presumptive  bar  to  a  proceeding  of  a  legatee  or  dis- 
tiibutee  for  a  settlement  of  the  estate;  but  that  time  is  to  be  computed  from 
the  time  when  a  settlement  could  first  have  been  compelled,  and  not  from  the 
date  of  the  trust,  and  that  the  running  of  the  statute  in  favor  of  the  sureties  of 
an  executor  or  administrator  does  not  bring  him  within  the  statute,  as  there  is 
no  statutory  limitation  to  a  trust.  Greenlees  v.  Greenlees,  62  Ala.  336.  But 
where  th  re  is  a  violation  of  the  terms  of  a  trust,  a  right  of  action  accrues  at 
•  - r  1  •  e,  and  the  statute  begins  to  run  thereon  from  that  time.  Wilson  v.  Greene, 
.Jo  low:  251. 

1  Spediel  v.  I lenrici,  120  U.  S.  377.  In  Loring  v.  Palmer,  118  U.  S.  321,  it 
wm  held  that  Ia<  hes  1  ould  not  be  set  up  to  defeat  an  equitable  action  where  the 
del  iv  w  is  induced   by  the  fraud  on  the  part  of  the  person  setting  it  up. 

'  Smith    v.    flay,  3    Bro.  Ch.  640;    Piatt    v.    Vattier,   9    Pet.    (U.    S.)  405;   Mc- 


§  200.  |  TRUSTS    AND    TRUSTEES.  46 1 

the  bill  shows  upon  its  face  that  the  plaintiff,  by  reason  of  lapse 
of  time  and  of  his  own  laches,  is  not  entitled  to  relief,  and  the 
objection  may  be  taken  by  demurrer.1  (a)  Therefore  a  trust,  in 
order  to  be  exempt  from  the  operation  of  the  statute,  must  be 
direct  or  express,  and  of  a  nature  not  cognizable  at  law,  but 
solely  in  equity.3     If  this  limitation  was  not  imposed,  and  the 

Knight  v.  Taylor,  1  How.  (U.  S.)  161;  Bowman  v.  Wathen,  1  How.  (U.  S.)  189; 
Wagner  v.  Baird,  7  How.  (U.  S.)  234;  Badger  v.  Badger,  2  Wall.  (U.  S.)  87; 
Marsh  v.  Whitmore,  21  Wall.  (U.  S.)  T78;  Sullivan  v.  Portland  &  K.  R.  Co.,  94 
U.  S.  806;  Godden  v.  Kimmell,  99  U.  S.  201.  In  Hume  v.  Beal,  17  Wall.  (U. 
S.)  336,  348,  the  court,  in  dismissing,  because  of  unexplained  delay  in  suing 
a  bill  by  cestui  que  trust  against  a  trustee  under  a  deed,  observed  that  it  was  not 
important  to  determine  whether  he  was  the  trustee  of  a  mere  dry,  legal  estate, 
or  whether  bis  duties  and  responsibilities  extended  further.  See  also  Bright  v. 
Legerton,  29  Beav.  60,  and  2  De  Gex,  F.  &  J.  606. 

1  Maxwell  v.  Kennedy,  8  How.  (U.  S.)  210;  National  Bank  v.  Carpenter,  ioi 
U.  S.  567;  Lansdale  v.  Smith,  106  U.  S.  391. 

2  Clay  v.  Clay,  7  Bush  (Ky.)  95;  Hayward  v.  Gunn,  supra;  McClane  v.  Shep- 
herd, 21  N.  J.  Eq.  76;  Partridge  v.  Wall,  supra.  In  Harlow  v.  Dehon,  in 
Mass.  195,  an  instrument  under  seal,  signed  by  P.  and  W.,  reciting  that  P.  has 
received  from  the  executors  of  the  estate  of  W.'s  father  $2,000,  and  covenanting 
that  until  P.  invests  the  sum  as  a  special  trust  fund  he  will  pay  interest  thereon 
to  W. ;  and  when  the  sum  is  so  invested,  pay  W.  the  income  thereof,  and,  on 
the  death  of  W.,  pay  over  the  same,  or  the  proceeds  thereof,  to  W.'s  adminis- 
trator; and,  in  case  of  P.'s  death  before  W.,  P.'s  executors  are  to  execute  the 
same  trust  —  was  construed  to  constitute  at  most  only  a  constructive  trust,  and 
to  be  barred  by  the  lapse  of  six  years  from  the  appointment  of  W.'s  adminis- 
trator. Galvin's  Estate,  Myrick's  Prob.  (Cal.)  82.  In  Maine,  under  the  statute, 
it  has  been  held  that  a  bill  against  heirs  for  a  specific  performance  of  a  con- 
tract to  convey  land  does  not  apply  to  a  trust  evidenced  in  writing.  Frost  ?. 
Frost,  63  Me.  399.  In  McGuire  v.  Linneus,  74  Me.  344,  it  was  held  that  where 
a  town  holds  money  belonging  to  an  individual,  the  statute  does  not  begin  to 
run  against  the  cestui  que  trust  until  it  has  announced  its  intention  to  hold  it 
adversely.  In  Hamer  v.  Sidway,  124  N.  Y.  538,  where  S.  died  in  1887  without 
having  paid  any  portion  of  the  sum  agreed  upon,  it  was  held  that,  under  an 
agreement  made  in  1875,  the  relation  of  the  parties  thereafter  was  not  that  of 
debtor  and  creditor,  but  of  trustee  and  cestui  que  trust;  and  that,  therefore,  the 
claim  was  not  barred.     See  Mallory  v.  Gillett,  21  N.  Y.  412;  Belknap  v.  Bender, 

(a)  The  established  rule   now   is,   in  ley,  10  Ch.  D.  31;   Rolfe  v.  Gregory,  3T 

ihe    Federal   courts  and  in   Massachu-  L.   J.    Ch.    710;     French    v.    Dickey,   3 

setts  and  other  States,  that  the  defense  Tenn.  Ch  302;   Bell  v.  Johnson,  111  111. 

of  laches  appearing  on  the  face  of   the  374;    supra,    §    7;    Fogg   v.   Price,    145 

bill,  may  be  taken  by  demurrer,  but  it  Mass.  513;  Snow  v.  Boston  Blank  Book 

need  not  be  so  taken,  as  the  court  will  Manuf.  Co.,  153  Mass.  456.     In  the  last 

notice    it,    though    not  pleadsd  at  all.  of  these  cases  it  was  held  that  the  with- 

Taylor  v.  Holmes,  127  U.  S.  489;   Nor-  diawal    or    waiver    of    a   demurrer    in 

ris  v.  Haggin,   136  U.  S.   386;  Lant  t.  equity,  which  assigned  laches  as  one 

Manley,  71   Fed.    Rep.  7,   16;   Dawkins  ground    thereof,    did     not    waive    this 

v.  Penryhn,  4  A.  C.  51;   Noyes  v.  Craw-  defense. 


462 


STATUTES    OF    LIMITATION. 


[CHAP.   XVII. 


statute  was  not  permitted  to  operate  where  an  implied  trust 
exists,  the  exceptions  would  be  endless,  as,  in  fact,  every  case  of 
deposit  or  bailment  in  a  certain  sense  creates  a  trust,  and  the 
instances  in  which  an  implied  trust  may  be  raised  are  almost 
innumerable;  and  there  is  much  wisdom  in  the  rule  that  restricts 
the  saving  operation  of  the  statute  to  those  express  and  continu- 
ing trusts  which  are  not  cognizable  at  law,  and  where  the  plain- 
tiff has  no  legal  title,  the  estate  being  vested  in  the  trustee.1  (a) 

75  id.  446;  Betry  v.  Brown,  107  id.  659;  Beaumont  v.  Reeve,  Shirley's  L.  C. 
6;  Porterfield  v.  Butler,  47  Miss.  165;  Duvoll  v.  Wilson,  9  Barb.  487;  Robinson 
v.  Jewett,  116  N.  Y.  40. 

1  Lockey  v.  Lockey,  Prec.  Ch.  518;  Lawly  v.  Lawly,  9  Mod.  32;  Cholmondeley 
v.  Clinton,  2  Jac.  &  W.  171;  Blount  v.  Robeson,  3  Jones  (N.  C.)  Eq.  14; 
Tucker  z\  Tucker,  1  McCord  (S.  C.)  Ch.  176;  Burham  v.  James,  1  Speers  (S. 
C.)  Eq.  375;  Farnam  v.  Brooks,  9  Pick.  (Mass.)  212;  Finney  v.  Cocrran,  1  W. 
&  S.  (Penn.)  11S;  Johnston  v.  Humphrys,  14  S.  &  R.  (Penn.)  394;  Walker  v. 
Walker,  16  id.  379;  Culbert  1.  Fleming,  5  Leg.  &  Ins.  Rep.  19;  Fox  v.  Lyon, 
33  Penn.  St.  474;  Clark  v.  Trindle,  52  id.  492;  Best  v.  Campbell,  62  id.  476; 
Mussey  v.  Mussey,  2  Hill  (S.  C.)  Eq.  496;  McDowell  v.  Goldsmith,  6  Md.  319; 
Sayles  v.  Tibbitts,  5  R.  I.  79;  Marsh  v.  Oliver,  1  N.  J.  Eq.  209;  Martin  v. 
Decatur  Branch  Bank,  31  Ala.  115. 


(a)  Suit  by  a  cestui  que  trust  against 
his  trustee,  when  the  trust  is  express 
and  cognizable  only  in  equity,  are 
usually  not  within  the  statute  of  limita- 
tions as  applied  in  equity,  since  the 
trustee's  possession  is  ordinarily  the 
possession  of  the  cestui;  and  as  their 
attitude  towards  each  other  is  not  hos- 
tile or  antagonistic,  there  is  no  cause  of 
action  to  be  barred.  Dyer  v.  Walters, 
46  N.  J.  Eq.485;  Ryder  v.  Loomis,  161 
Mass.  161;  Low  v.  Low,  173  Mass.  580; 
Cone  v.  Dunham.  8  L.  R.  A.  647,  and 
note.  But  when  the  trustee  of  an  ex- 
press trust  has  assumed  a  hostile  atti- 
tude against  the  cestui  by  denying  his 
rijht  or  disavowing  the  trust,  or  has 
committed  a  breach  of  trust  causing 
loss  to  the  estate,  which  has  come  to 
the  cestui' s  knowledge,  and  has  refused 
to  mike  it  good,  the  cestui  has,  by  the 
weight  of  authority,  a  present  cause  of 
action  as  to  which  the  statute  of  lim- 
itations will  run,  although  numerous 
authorities  hold  that  the  statute  does 
not  run  in  equity,  even  against  such  a 
breai  h  of  an  express  trust.  See  Soar 
v,  Ashwell,  1 1893)  2  Q.  B.  390;  Linds- 
ley  v.  Dodd,  S3  N.  J.  Eq.  69;  Treadwell 
v.  Treadwell,  176  Mass.  554.  When, 
however,  the  trust  arises  merely  by  im- 


plication of  law,  laches  may  bar  relief, 
as  where  beneficiaries  delayed  for  thir- 
teen years  after  knowledge  of  the 
trustee's  misappropriation  of  the  trust 
funds  to  take  action  against  those  who 
had  received  the  funds,  they  were  held 
to  be  deprived,  by  their  laches,  of  the 
right  to  follow  the  trust  funds.  Mc- 
Laflin  v.  Jones,  155  111.  539.  See  Gil- 
lette v.  Wiley,  126  111.  310;  Le  Gendre 
v.  Byrnes,  44  N.  J.  Eq.  372;  Kennedy 
v.  Winn,  80  Ala.  165;  Day  v.  Brenton 
(Iowa)  63  Am.  St.  Rep.  460,  475,  note. 

A  cestui  que  trust  who  appeals  for  re- 
lief to  a  court  of  equity  must  specific- 
ally set  forth  in  his  bill  what  were  the 
impediments  to  an  earlier  prosecution 
of  his  claim;  how  he  came  to  be  so 
long  ignorant  of  his  rights,  the  means 
used  by  the  respondent  to  fraudulently 
keep  him  in  ignorance,  and  how  and 
when  he  first  came  to  a  knowledge  of  the 
matters  alleged  in  the  bill.  Badgers. 
Badger,  2  Wall.  (U.  S.)  87,  95;  Hardt  v. 
Heidweyer,  152  17.  S.  547,  559;  Teall 
v.  Slaven,  14  Sawyer  (U.  S.)  364.  In 
Ames  v.  Brooks,  143  Mass.  344,  the 
beneficiary's  delay  in  enforcing  a 
trustee's  personal  liability  was  held  not 
to  affect  his  right  to  receive  the  trust 
fund  when  collected  bv  the  trustee. 


§  200.J  TRUSTS    AND    TRUSTEES.  463 

Strictly  speaking,  in  their  technical  sense,  trusts  are  known  only 
in  equity,  and  fall  within  its  peculiar  and  exclusive  jurisdiction; 
and  this  class  of  trusts,  so  long  as  they  continue,  as  between 
trustee  and  cestui  que  trust  cannot  be  reached  by  the  statute  of 
limitations.1  (a)  This  doctrine  rests  upon  the  case  of  Cholmon- 
deley  v.  Clinton,  before  cited,  and  has  been  universally  adopted 
in  the  courts  of  this  country,  as  well  as  in   England,  ever  since. 

1  Story,  J.,  in  Baker  v.  Whiting,  3  Sum.  (U.  S.  C.  C.)  486;  Kane  v.  Blood- 
good,  supra;  Partridge  v.  Wells,  30  N.  J.  Eq.  176;  Greenwood  v.  Greenwood,  5 
Md.  334;  Lowe  v.  Watkins,  40  Cal.  547;  Bourne  v.  Hall,  10  R.  I.  144;  Baylor 
v.  Digarnette,  13  Gratt.  (Va.)  152;  Hostetter  v.  Hollinger,  117  Penn.  St.  606; 
Collard  v.  Tuttle,  4  Vt.  491;  People  v.  Oran,  121  111.  650;  Buckingham  v.  Lud- 
lam,  37  N.  J.  Eq.  144;  McClane  v.  Shepherd,  21  id.  76.  No  lapse  of  time  bars 
a  direct  trust  until  it  is  repudiated,  because  untii  that  time  no  right  of  action 
accrues  to  the  cestui  que  trust.  Robinson  v.  Robinson,  5  Lans  (N.  Y.)  165; 
Bigelow  v.  Catlin,  50  Vt.  410.  In  Rushing  v.  Rushing,  42  N.  J.  Eq.  594,  it  was 
held  that  the  statute  did  not  apply  where  the  cestui  is  the  wife  of  the  trustee. 
In  Comstock's  App.,  55  Conn.  214,  the  court  held  that  money  received  by  the 
husband  from  his  wife's  separate  estale  was  received  by  him  as  statutory 
trustee,  and  therefore  that  the  statute  did  not  run  in  his  favor. 

While  the  trustee,  who  has  never  repudiated  his  trust,  is  in  possession  of  the 
trust  estate  the  statute  does  not  run.  Gilbert  v.  Sleeper,  71  Cal.  290:  Humphrey 
v.  Clearfield  Co.  Nat.  Bank,  113  Penn.  St  417.  In  Price  v.  Mulford,  107  N.  Y. 
303,  reversing  36  Hun,  247,  it  was  held  that  where  one  receiving  money  in  his 
own  right  is  afterwards  by  evidence  or  construction  changed  into  a  trustee,  he 
may  plead  the  statute  of  limitations  as  a  bar  in  an  action  to  recover  the  money. 

In  Hovenden  v.  Annesley,  2  Sch  &  Lef.  607,  Lord  Redesdale  thus  states 
the  reason  for  this  rule:  "  If  a  trustee  is  in  possession,  and  does  not  execute 
his  trust,  the  possession  of  the  trustee  is  the  possession  of  the  cestui  que  trust; 
and  if  the  only  circumstance  is  that  he  does  not  perform  his  trust,  his  posses- 
sion operates  nothing  as  a  bar,  because  his  possession  is  according  to  his  title." 
This  doctrine  is  in  obedience  to  the  rule  that  equity  will  give  effect  to  the  stat- 
ute of  limitations  in  all  cases  where  there  is  a  concurrent  jurisdiction  at  law 
and  in  equity.  Roosevelt  v.  Mark,  6  Johns.  (N.  Y.)  Ch.  266;  Mann  v.  Fair- 
child,  2  Keyes  (N.  Y.)  106;  Prevost  v.  Gratz,  6  Wheat.  (U.  S.)  481;  Railroad  Co. 
v.  Durant,  95  U.  S.  576;  Lewis  v.  Hawkins,  23  Wall.  (U.  S.)  119;  Atty.-Gen.  v. 
Purmont,  5  Paige  (N.  Y.)  Ch.  620;  Clark  z:  Ford,  3  Keyes  (N.  Y.)  170;  Stafford 
v.  Bryan,  1  Paige  (N.  Y.)  Ch.  239;  Spoor  v.  Wells,  3  Barb.  (N.  Y.)  Ch.  199; 
Lindsay  v.  Hyatt,  4  Edw.  (N.  Y.)  Ch.  97;  Frost  v.  Frost,  id.  733. 

(a)  A  solicitor  to  a  trust,  into  whose  B.  390.     See  Heynes  v.  Dixon,  [1900]  2 

hands  the  irustees  have  permitted  the  Ch.   561;    In  re  Lands   Allotment  Co.. 

trust  f  ands  to  come,  is  in  position  of  an  [1894]  1  Ch.  616.     A  cause  of  action  for 

express  trustee  as  to  such   funds;   or,  negligence  and  concealment  in  advis- 

if  regarded  as  a  stranger  to  the  trust,  ing   a  client   to  invest  on  a  mortgage 

having    received   the    money    under    a  dates,  as  to  limitation,  from  the  time  of 

breach  of  trust  in  which  he  concurred,  the  negligent   act,  and  the  duty  10  dis- 

his    trust   is    still    express,    as    he  has  close    dies   not  continue   from   day  to 

assumed    to    act    and    ha?    acted    as  a  day.     Wood  v.  Jones,  61  L.  T.  551. 
trustee.     Soar  v.  Ashwell,  [1893J  2   Q. 


464  STATUTES   OF   LIMITATION.  [CHAP.    XVII. 

The  reason  why  express  trusts  are  treated  as  not  being  within 
the  statute  of  limitations  is  because  the  possession  of  the  trustee 
is  presumed  to  be  the  possession  of  the  cestui  que  trust} 

But  to  this  rule  there  is  this  qualification,  and  that  is,  that  when 
the  trustee  openly  disavows  the  trust,  and  clearly  and  unequivo- 
cally sets  up  a  right  and  interest  adverse  to  the  cestui  que  trust, 
and  which  is  made  known  to  the  latter,  the  statute  begins  to  run 
in  his  favor.2  (a) 

1  R.  R.  Co.  v.  Durant,  95  U.  S.  576;  Prevosl  v.  Gratz,  6  Wheat.  481;  Speidel 
v.  Henrici,  120  U.  S.  377. 

5  Philippi  v.  Philippi,  115  U.  S.  151;  Willison  v.  Watkins,  3  Pet.  (U.  S.)43; 
Bacon  v.  Rives,  106  U.  S.  99;  Oliver  v.  Piatt,  3  How.  (U.  S.)  333;  Kane  v. 
Bloodgood,  7  John.  Ch.  (N.  Y.)  90;  Robinson  v.  Hook,  4  Mas.  (U.  S.)  139; 
Boone  v.  Chiles,  10  Pet.  (U.  S.)  177;  Seymour  v.  Freer,  S  Wail.  (U.  S.)  202.  In 
Speidel  v.  Henrici,  120  U.  S.  377,  Mr.  Justice  Gray  says:  "  As  a  general  rule, 
doubtless,  length  of  time  is  no  bar  to  a  trust  clearly  established,  and  express 
trusts  are  not  within  the  statute  of  limitations,  because  the  possession  of  the 
trustee  is  presumed  to  be  the  possession  of  his  cestui  que  trust.  Prevosl  v. 
Graiz.  6  Wheat.  (U.  S.)  4S1;  Lewis  v.  Hawkins,  23  Wall.  (U.  S.)  119;  R.  R. 
Co.  z-.  Durant,  95  U.  S.  576.  But  this  rule  is  in  accordance  with  the  reason  on 
which  it  is  founded,  and,  as  has  been  clearly  pointed  out  by  Chancellor  Kent 
and  Mr.  Justice  Story,  subject  to  this  qualification:  that  time  begins  to  run 
against  a  trust  as  soon  as  it  is  openly  disavowed  by  the  trustee,  insisting  upon 
an  adverse  right  and  interest  which  is  clearly  and  unequiovcally  made  known 
to  ihe  cestui  que  trust;  as  when,  for  instance,  such  transactions  take  place 
between  the  trustee  and  the  cestui  que  trust  as  would  in  case  of  tenants  in  com- 
mon amount  to  an  ouster  of  one  of  them  by  the  other."      Kane  v.   Bloodgood, 

(<i)  See   In  re  Davis.  [1891]  3  Ch.  9;  send  v.  Tyndale,  165  Mass.  293.     But  a 

/;/  re  Barker,  [1892]  2  Ch.  491;  Riddle  v.  trustee's    claim,    known   to   the   bene- 

Whitebill,  135  U.  S.  021;  Alsop  v.  Riker,  ficiary,  that  he  has  fully  accounted  for 

!--  id,   44S,    460;   Gildersleeve   v.  New  and  turned  over  the  trust  property  that 

Mexico  Mining  Co.,  161  id.  573,    Whit  was  in  his  possession,  must  be  attended 

neyw.  Fox,  166  id.  637;  supra,  §58,  n.  (a),  to,  as  limitation  against  a  claim  upon 

The  statute  of  limitations  does   rfot  the  trustee   to  account   commences  to 

1     to    run    in    favor    of    a    trustee  run  from  ihe  lime  of  such   knowledge, 

a^  linst    the    cestui    que  trust  unlil   the  Wolf   v.   Wolf,  97    Iowa,    279,  in   which 

former   has   repudiated    the   trust,  and  case  the  plaintiff   placed   his  property 

knowledge  of  the  repudiation  has  come  with  another  for  payment  of  his  debts. 

home   to  the  latter.     Childs  v.  Jordan,  See  Jones  v.  Home  Savings  Bank,  11s 

ton    Mass.    321;  Jones  v.    McDermott,  Mich.  155. 

w\                            Mivis   v.  Coburn,  128  A  savings  bank  so  far  holds  a  trust 

J77;    I  rench  v.  Merrill,  132  Mass.  relation  toils  depositors   that  when  it 

ominstei   Savings  sets  up  the  fact  of  a  demand  and  notice 

I;  ink,  152  M  iss,  49;   'J  Perry  on  Trusts  in   its  own   defense,  and    not    the  want 

.    ;  i                               nil    notes.     As  thereof,  six  years  before  action  brought, 

Ltute  of  limitations  does  not  ex-  it  must  show  a  denial  01    repudiati  >n 

h  a  di  bl    ■  •  tl  does  not  affect  a  of  liability  on  its  part.     Dickinson 

foi   its  payment,  so  long  Leominster  Savings  Bank,  supra.     See 

:,       i|                    subsists.        Campbell  Campbell     t.     Whoriskey,     [70    M. 

P  inn,  St.  304    307;  Town-  63. 


§  201.]  TRUSTS    AND    TRUSTEES.  465 

Sec.  201.  Express  Trusts.  —  An  express  trust  must  be  actually 
expressed  in  terms  by  deed,  will,  or  some  writing,  or  in  some 
manner  so  as  to  vest  the  legal  estate  in  the  trustee.  In  an  Eng- 
lish case,1  Lord  Westbury  said  that  "  to  create  an  express  trust 
two  things  must  combine, — -there  must  be  a  trustee  with  an 
express  trust,  and  an  estate  or  interest  vested  in  the  trustee." 
To  create  an  express  trust  in  lands,  under  the  statute  of  frauds, 
it  must  be  created,  or  evidenced  in  writing;2  and  if  it  is  not 
created  in  writing,  it  must  be  proved  by  a  writing  under  the 
hands  of  the  party  to  be  charged.3  In  Vermont,  it  is  held  that 
an  express  trust,  except  in  lands,  may  be  created  without  writ- 
ing;4 and  generally  it  may  be 'said  that  trusts  in  peisonal  prop- 
erty may  be  created  and  proved  by  parol,5  and  so,  also,  a  mere 
resulting  or  constructive  trust  may  be  established  by  parol,6  as 
the  statute  of  frauds  has  no  application  to  it,7  even  though  it 
relates  to  real  estate;  and  where  land  is  purchased  in  the  name  of 
one  person,  and  the  consideration  is  paid  by  another,  the  person 
in  whose  name  the  deed  is  taken  holds  the  land  in  trust  for  the 
person  who  furnished  the  money,  and  the  trust  may  be  estab- 
lished by  parol;8  but  not  where  the  person  taking  the  conveyance 

7  Johns.  Ch.  go;   Robinson  v.    Hook,  4  Mason,  139,    152;   Baker    v.  Whiting,    3 
Sumn.   475,  486;  Oliver   v.    Piatt,  3  How.  (U.  S.)  333. 

1   Dickinson   v.  Teasdale,  1   De  G.  &  J.   Sm.   52.     See  In  re  Frazer,  92  N.  Y. 

239- 

1   Hovey  v.  Holcomb,  n  111.  660;   Eldridge  v.  See  Yup  Co.,  17  Cal.  44. 

3  Unitarian  Society  v.  Woodbury,  14  Me.  281;  Brown  v.  Brown,  1  Strobh.  (S. 
C.)  Eq.  363;  Maccabbin  v.  Cromwell,  7  G.  &  J.  (Md.)  157;  Hertle  v.  McDonald, 
2  Md.  Ch.  128;  Rutledge  v.  Smith,  1  McCord  (S.  C.)  Ch.  119;  Wright  v.  King, 
Harr.  (Mich.)  Ch.  12;  Riggs  v.  Swan,  6  Jones  (N.  C.)  Eq.  118;  Steere  v.  Steere, 
5  Johns.  (N.  Y.)  Ch.  1;  James  v.  Fulcrod,  5  Tex.  512;  Peaslee  v.  Barney,  1  D. 
Chip.  (Vl.)  331;  Lane  v.  Ewing,  31  Miss.  73. 

4  Porter  v.  Bank  of  Rutland,  19  Vt.  410. 

5  Kirkpatrick  v.  Davidson,  2  Ga.  297;  Saunders  v.  Harris,  1  Head  (Tenn.) 
185;  Gordon  v.  Gordon,  10  Ga.  534;  Kimball  v.  Morton,  5  N.  J.  Eq.  26;  Hooper 
v.  Holmes,  11  id.  122;  Higgenbottom  v.  Peyton,  3  Rich.  (S.  C.)  Eq.  398;  Day 
v.  Roth,  18  N.  Y.  4480 

e  Hovey  v.  Holcomb,  n  111.  660;  Enos  v.  Hunter,  9  id.  211;  Farringerz/.  Ram- 
say, 4  Md.  Ch.  33;  Slaymaker  v.  St.  John,  5  Watts  (Penn.)  27;  Kelly  v.  Mills, 
41  Mo.  267;   Farrington  z/.Barr,  36  N.  H.  86;   Cloud  v.  Ivie,  28  Mo.  578. 

7  Peabody  v.  Tarbell,  2  Cush.  (Mass.)  226;  Leakey  v.  Gunter,  25  Tex.  400; 
Dean  v.  Dean,  6  Conn.  285;  Caple  v.  McCollum,  27  Ala.  461;  McGuire  v.  Ram- 
sey, 9  Ark.  518;  Hauff  v.  Howard,  3  Jones  (N.  C.)  Eq.  440;  Jackson  v.  Mats- 
dorf,  11  Johns.  (N.  Y.)  91. 

8  Barron  v.   Barron,  24  Vt.   375;  Osborne  v.  Endicott,  6  Cal.   149;  Bayles  v. 

[stats,  of  lim.  —  30.] 


466  STATUTES   OF   LIMITATION.  [CHAP.   XVII. 

also  furnishes  the  money  to  pay  for  the  same,1  nor  where  a  per- 
son conveys  land  to  another  absolutely,  under  an  agreement  that 
he  shall  reconvey  upon  request.2  "A  trust,"  says  the  court  in 
Massachusetts,3  "must  result,  if  at  all,  at  the  instant  the  deed 
passes,"  and  this  is  the  general  rule.4  Where  it  is  attempted  to 
avoid  the  bar  of  the  statute  on  the  ground  that  the  possession  of 
the  defendant  is  fiduciary  it  must  be  shown  that  it  is  fiduciary 
in  respect  to  the  plaintiff,  or  those  under  whom  he  claims;  it  is 
not  sufficient  that  it  is  fiduciary  as  to  a  third  person.5 

SEC.  202.   Assignees  in  Bankruptcy,  Insolvency,  &c  —  It  is  held 
that  an  assignee  in  bankruptcy,  affeer  the  property  of  the  bankrupt 

Baxter,  22  id.  575;  Millard  v.  Hathaway,  27  id.  119;  Smith  v.  Strahan,  16  Ttx. 
314;  Neill  v.  Keith,  5  id.  23;  Lang  v.  Steiger,  8  id.  460;  Strimpfler  v.  Roberts, 
iS  Penn.  St.  283;  Lynch  v.  Cox,  23  id.  265;  Lyford  v.  Thurston,  16  N.  H.  399; 
Bruce  v.  Roney,  18  111.  67;  Smith  v.  Sackett,  10  id.  534;  Page  v.  Page,  8  N.  H. 
187;  Johnson  v.  Dougherty,  iS  N.  J.  Eq.  406;  Williams  v.  Hollingsworth,  1 
Strobh.  (S.  C.)  Eq.  103;  Thomas  v.  Walker,  6  Humph.  (Tenn.)  93;  Taliaferro  v. 
Taliaferro,  6  Ala.  404;  Dorsey  v.  Clarke,  4  H.  &  J.  (Md  )  551;  Claussen  v.  La 
Franz,  2  Iowa,  437;  Murdock  v.  Hughes,  15  Miss.  219;  Paul  v.  Chouleau,  14 
Mo.  580;  Hollis  v.  Hayes,  1  Md.  Ch.  479;  Bank  o.  Carrington,  7  Leigh  (Va.) 
566;  Creed  v.  Lancaster  Bank,  1  Ohio  St.  1;  Ragan  v.  Walker,  1  Wis.  527; 
Pinney  v.  Fellows,  15  Vt.  525. 

1  Dorsey  v.  Clarke,  4  H.  &  J.  (Md.)  551;  Fawke  v.  Slaughter,  3  A.  K.  Mar. 
(Ky.)  56.  In  Sample  v.  Coulson,  9  W.  &  S.  (Penn.)  62,  held  that  a  trust  in 
lands  cannot  be  established  by  the  proof  of  parol  declarations  made  by  the  pur- 
chasers of  land  at  or  after  the  sale.  Gee  v.  Gee,  32  Miss.  190;  Francestown  v. 
Deering,  41  N.  H.  438;  Pinnock  v.  Clough,  16  Vt.  500;  Alexander  v.  Tarns,  13 
111.  221;  Cutter  v.  Tuttle,  19  N.  J.  Eq.  549;  Barnet  v.  Dougherty,  32  Penn.  St. 
371;  Barnard  v.  Jewett,  97  Mass.  S7;  Steere  v.  Steere,  5  Johns.  (N.  Y.)  Ch.  I; 
Bernard  v.  Boueard,  Harr.  (Mich.)  130;  Forsyth  v.  Clark,  3  Wend.  (N.  Y.)  637; 
Mahorner  v.  Harrison,  21  Miss.  53;  Rogers  v.  Murray,  3  Paige  (N.  Y.)  Ch.  390; 
Perry  v.  McHenry,  r3  111.  227;  Botsford  v.  Burr,  2  Johns.  (N.  Y.)  Ch.  205;  Fos- 
ter v.  Trustees,  3  Ala.  302.  If  several  persons  furnish  each  a  part  of  the  pur- 
chase money,  a  trust  arises  in  favor  of  each  in  proportion  to  the  amount  of  the 
consideration  furnished  by  him.  Tebbetts  v.  Tilton,  31  N.  H.  273;  Baumgart- 
ner  v.  Guessfeld,  38  Mo.  36;  Pinney  v.  Fellows,  15  Vt.  525:  Chad  wick  v.  Felt, 
35  Penn,  St.  305;  Buck  v.  Swazey,  35  Me.  41;  Shoemaker  v.  Smith,  11  Humph. 
(1  run.)  Si.  But  it  is  held  that  the  part  payment  must  be  a  definite  part  of  the 
purchase  money,  as  one-half,  one-third,  or  the  like.  Sayre  v.  Townsend,  15 
Wend.  (N.  Y.)  047. 

•  Dean  7i.  Dean,  6  Conn.  285;  Titcomb  v.  Morrill,  10  Allen  (Mass.)  15. 
3  Could  v.  Lynde,  114  Mass.  366. 

1  Midmer  v   Midmer,  26  N.  J.  Eq.  299;  Sale  v.  McLean,  29  Ark.  612;  Payne 
v.  Patl  erson,  77  Penn,  St.  124. 

*  Spot  Dandrtdge,  4  H.  &  M,  (Va.)  139. 


§202.J  TRUSTS    AND    TRUSTEES.  467 

is  vested  in  him,  becomes  a  trustee  for  the  creditors,  and  from 
that  time  the  statute  ceases  to  run  against  them.1  The  same 
rule  also  applies  to  insolvent  debtors  who  avail  themselves  of 
insolvency  statutes,  or  who  are  forced  into  insolvency  by  their 
creditors,  and  the  statute  is  suspended  from  the  time  when  notice 
of  the  proceedings  is  given  in  the  manner  provided  by  law.2  So, 
too,  this  rule  applies  when  an  insolvent  debtor  makes  an  assign- 
ment under  the  statute  for  the  benefit  of  his  creditors,  and  it  is 
held  in  such  cases  that  the  statute  ceases  to  run  from  the  date  of 
the  assignment.3  The  discharge  of  a  debtor  under  insolvent  laws 
does  not  suspend  the  running  of  the  statute  in  his  favor.4 

Sec.  203.  Cestui  que  Trust  in  Possession.  —  Where  a  cestui  que 
trust  under  an  express  trust  is  in  possession  of  the  trust  estate, 

1  Ex  parte  Ross,  2  Glyn  &  Jam.  46,  where,  upon  appeal,  ihe  Lord  Chancellor 
said:  "The  effect  of  the  commission  is  clearly  to  vest  ihe  property  in  the 
assignees  for  the  benefit  of  creditors,  and  therefore  they  are  in  effect  trustees; 
and  it  is  an  admitted  rule  that  unless  debts  are  already  barred  by  the  stitule  of 
limitations  when  the  trust  is  created,  it  is  not  afterwards  affected  by  lapse  of 
time."     See  In  re  Eldridge,  12  Nat.  Br.  No.  12,  1875. 

5  Minot  v.  Thacher,  7  Met.  (Mass.)  348.  In  all  cases  of  concurrent  juris- 
diction, where  a  party  has  a  legal  and  equitable  remedy  in  regard  to  the  same 
subject-matter,  courts  of  equity  obey  the  law,  and  give  to  the  statute  the  same 
effect  and  operation  in  the  one  court  as  in  the  other.  Dugan  v.  Gittings,  3  Gill 
(Md.)  138;  Hertle  v.  Schwartze,  3  Md.  366;  Kane  v.  Bloodgood,  7  Johns.  (N.  Y.) 
Ch.  90;  In  re  Leiinan,  32  Md.  225,  3  Am.  Rep.  132.  By  the  insolvent  laws 
of  Maryland  property  vested  in  the  trustee  is  no  longer  within  the  reach  of  pro- 
cess by  the  creditors,  and  the  insolvent,  being  discharged  from  the  payment  of 
his  debts,  is  no  longer  liable  to  suit,  and  the  trustee  being  answerable  only  for 
a  breach  of  trust,  no  proceedings  can  be  instituted  against  him  until  the  ratifica- 
tion of  the  audit,  because,  until  then,  and  notice  thereof,  he  is  not  guilty  of  a 
breach  of  trust.  See  Williams  v.  Williams,  3  Md.  163;  Buckey  r-.  Culler,  18  id. 
418;  Ex  parte  Ross,  2  Glyn  &  Jam,  46;  Minot  v.  Thayer,  7  Met.  (Mass.)  348.  In 
Strike's  Case,  1  Bland  (Va.)  57,  where  the  proceeding  was  to  set  aside  certain 
fraudulent  conveyances,  and  for  a  sale  of  the  property  for  the  benefit  of  credit- 
ors, and  although  in  the  disposition  of  some  of  the  questions  which  arose,  the 
Chancellor  likened  it  to  a  case  of  insolvency,  the  distinct  question  in  regard  to 
the  statute  of  limitations  raised  by  these  appeals  did  not  arise,  and  cannot  be 
said  to  have  been  directly  passed  upon.  This  question  was  decided  in  Strike  v. 
McDonald  &  Son,  2  H.  &  G.  (Md.)  191. 

3  Willard  v.  Clark,  7  Met.  (Mass.)  435.  In  Heckert's  Appeal,  24  Penn.  St. 
482,  the  court  held  that  an  assignment  for  the  benefit  of  creditors  is  a  trust 
exclusively  cognizable  in  equity,  and  that  the  trustee  could  not  interpose  the 
statute  of  limitations  to  the  claim  of  a  creditor. 

4  Shoenberger  v.  Adams,  4  Watts  (Penn.)  430;  Gest  v.  Heiskill,  5  Rawle 
(Penn.)  134;  West  v.  Creditors,  1  La.  An.  365. 


468  STATUTES   OF   LIMITATION'.  [CHAP.   XVII. 

he  is  held  to  occupy  the  relation  of  tenant  at  will  to  the  trustee,1 
and  consequently  no  lapse  of  time  will  give  him  a  title  as  against 
the  trustee.2  But  this  rule  only  holds  as  between  the  trustee  and 
cestui  que  trust,  and  does  not  apply  where  an  assignee  of  the 
cestui  que  trust,  or  other  person  claiming  under  him,  is  in  posses- 
sion, as  such  persons  are  not  precluded  by  the  fact  that  the  prop- 
erty is  subject  to  a  trust  from  availing  themselves  of  the  benefit 
of  the  statute;3  nor  does  it  apply  to  a  constructive  trustee  in 
possession,  as  a  purchaser  holding  under  an  agreement  to  pur- 
chase. This  latter  doctrine  was  affirmed  in  a  case  before  the 
United  States  Supreme  Court,4  and  the  court  say:  "Equity 
makes  the  vendor  without  deed  a  trustee  for  the  vendee  for  the 
conveyance  of  the  title;  the  vendee  is  a  trustee  for  the  payment 
of  the  purchase  money,  and  the  performance  of  the  terms  of  the 
purchase.  But  the  vendee  is  in  no  sense  the  trustee  of  the  vendor 
as  to  the  possession  of  the  property  sold.  The  vendee  claims 
and  holds  it  of  his  own  right,  for  his  own  benefit,  subject  to  no 
right  of  the  vendor,  save  the  terms  which  the  contract  expresses ; 
his  possession  is  therefore  adverse  as  to  the  property,  but  friendly 
as  to  the  performance  of  the  conditions  of  the  purchase."  5  The 
vendor  of  lands  under  an  executory  contract,  having  performed, 
holds  the  land  in  trust  for  the  vendee,  and  continues  to  do  so 
until  he  manifests  an  intention  to  hold  them  as  his  own;6  and 
the  same  rule  prevails  as  to  one  who  enters  into  possession  under 
a  contract  to  purchase7  until  after  the  purchase   money  is  due, 

1  Freeman  v.  Barnes,  1  Vent.  86. 

2  Reade  v.  Reade,  8  T.  R.  11S;  Keen  v.  Deardon,  8  East,  248;  Pomfret  v. 
Windsor,  2  Ves.  272;  Smith  v.  King,  16  East  283;  Garrard  v.  Tuck,  8  C.  B.  231; 
Burrell  v.  Egremont,  7  Beav.  205;  Jacobs  v.  Phillips,  10  Q.  B.  130. 

'   Melling  v.  Leake,  16  C.  B.  652;  Stanway  v.  Rock,  4  M.  &  G.  30. 
*  Blight  v.  Rochester,  7  Wheat.  (U.  S.)  535;  Stanway  v.  Rock,  supra. 
6  In  Garrard  v.  Tuck,  8  C.  B.  231.  under  the  Statute  3&  4  Wm.  IV.,  it  is  said: 
"  The  object  of  the  statute  is  to  settle  the  rights  of  persons  adversely  litigating, 
not   10   deal  with  cases  of  trustee   and  cestui  que  trust,  where  there  is  but  one 
simpl"  interest,  viz.,  that  of  the  person  beneficially  interested." 

'•   Hemming  v.  Zimmerschitte,  4  Tex.    159.     The   rule  is   that  after  a  sale  of 

real  estate,  and  before  a  conveyance,  the  vendor  is  trustee  of  the  legal  title  for 

the  vendee;  and   the  vendor's   possession,  while  it  can  be  reasonably  supposed 

ie  in  ;  mce  with  the-  trust,  will   be  construed   to  be  that  of  the  vendee, 

and  the  statute  of  limitations  will   not  operate,     Graham  v.  Nelson,  5  Humph. 

■ 

Is-,,,  v.  Bt  1  ight  in,  2  V  &  M.  (S.  C)  417;    Richards  v.  M'Kie,  1  Harp. 
I      C.)  Ch    1    1 


§  204-]  TRUSTS    AND    TRUSTEES.  469 

and  from  that  period  the  statute  begins  to  run  in  his  favor.1  If 
a  portion  of  trust  funds,  the  income  of  which  is  to  be  paid  to  a 
married  woman  for  her  life,  and  after  her  death  to  her  husband 
for  his  life,  with  remainder  over  of  the  principal  fund,  is  lent  to 
the  husband  upon  his  note,  payable  with  interest  semi-annually, 
and  it  is  agreed  by  all  the  parties  that  the  trustee  shall  not  collect 
the  interest,  in  order  to  avoid  the  trouble  of  receiving  the  same 
from  the  husband  and  paying  it  over  to  the  wife,  and  in  pursu- 
ance of  this  agreement  the  trustee  omits  for  more  than  six  years 
to  collect  the  interest,  the  note  is  not  thereby  barred  by  the 
statute  of  limitations;  but  the  trustee  may  set  off  the  same  in 
equity,  after  the  wife's  death,  against  a  claim  of  the  husband  for 
the  income.2 

Sec.  204.  Guardians.  —  While  the  relation  of  guardian  and 
ward  subsists,  the  guardian  stands  in  the  relation  of  trustee  to 
the  ward,  and  the  statute  is  not  applicable  to  his  account;3  and 
even  after  the  relation  is  terminated,  it  has  been  held  that  the 
statute  will  not  bar  a  guardian's  claim  against  his  ward  if  the 
delay  is  sufficiently  explained;4  but  there  would  seem  to  be  no 
good  ground  for  such  a  doctrine,  and  the  better  rule  seems  to  be 
that  the  statute  begins  to  run  from  the  termination  of  the  guardian- 
ship,5 except  in  cases  where  the  cause  of  action  arises  from  matters 
occurring  after  the  guardianship  has  ceased.6 

Sec.  205.  Executors  as  Trustees.  —  Executors  are  technically 
trustees  of  the  property  of  their  testator,  and  consequently  can- 
not, as  against  the  beneficiaries  under  the  will,  set  up  the  statute 
of  limitations  to  bar  their  claims,  so  long  as  the  relation  exists.7  (a) 

1   Ray  v.  Goodman,  1  Sneed  (Tenn.)  586. 
3  Upham  v.  Wyman,  7  Allen  (Mass.)  499. 

3  Kimball  v.  Ives,  17  Vt.  430;  Mathes  ^.Bennett,  21N.  H.  204. 

4  Kimball  v.  Ives,  szipra. 

5  Taylor  v. Kilgore,  33 Ala.  214. 

*  Shearman  v.  Akins,  4  Pick.  (Mass.)  283. 

1  Norris's  Appeal.  71  Penn.  St.  106  Arden  v.  Arden;  1  Johns.  (N.  Y.)  Ch.  313; 
Decouche  v.  Savetier,  3  id.  190;  Dillebaugh's  Estate,  4  Watts  (Penn.)  177;  Ward 
v.  Reeder,  2  H.  &  M.  (Md.)  145;  Dundon  v.  Gaskill,  2  Yeates  (Penn.)  271. 

(a)  Length  of  time  and  neglect  on  the  distributed     among    those   entitled    to 

part  of  the  cestui  que  trust  furnish  a  re-  them    the    funds    and   property  in    his 

buttable  presumption  that  an  executor  hands.     Fuller  v.  Cushman,  170  Mass. 

or  administrator  has  paid  over  to  and  286.     This  does  not  depend  upon  the 


470  STATUTES    OF    LIMITATION.  [CHAP.   XVII. 

A  legacy  may  be  so  held  as  to  be  a  trust  and  where  the  executor 
has  become  a  trustee  of  a  legacy  for  the  legatee  the  ordinary 
rules  that  exist  between  trustee  and  cestui  que  trust  apply  and  the 
legatee  will  not  be  barred  by  any  lapse  of  time.  This  happens 
more  readily  in  the  case  where  the  executor  is  also  expressly  a 
trustee  than  where  he  is  simply  executor.  Where  an  executor 
upon  trust,  who  has  therefore  the  double  character  of  executor 
and  trustee,  has  set  apart  and  appropriated  a  sum  to  satisfy  a 
certain  legacy,  he  is  considered  to  have  changed  the  character  of 
executor  for  that  of  trustee,2  as  much  as  if  he  had  been  trustee 
only,  and  a  different  person  as  executor  had  transferred  to  him 
the  money.  In  a  case  before  cited,3  an  executor  upon  trust  had 
assented  to  a  specific  legacy,  and  it  was  held  that  the  legacy 
became  thereby  clothed  with  a  trust.  An  executor  in  trust 
becomes  a  trustee  of  a  residue  as  soon  as  it  is  ascertained,4  and  he 
may  be  a  trustee  either  by  virtue  of  the  wording  of  the  will,  or  by 
implication  arising  from  his  acts.  In  the  latter  case,  if  the  legacy 
is  bequeathed  simply,  yet  the  executor  may  make  himself  a  trus- 
tee by  implication,  by  appointing  assets  for  a  particular  legacy, 
although,  as  a  fact,  in  most  of  the  cases  the  executor  had  been 
made  a  trustee  by  the  terms  of  the  will. 

The  reascn  why  an  executor  should  not  be  permitted  to  set  up 
the  statute  to  bar  a  legacy  is  because  his  retention  of  the  money 
is  consistent  with  the  capacity  in  which  he  holds  it,  and  indicates 

1   Phillipo  v.  Mannings,  2  Myl.  &  Cr.  309. 

°  Byrchall  v.  Bradford,  6  Madd,  13.  235;  Dix  v.  Burford,  19  Beav.  409; 
Brougham  v,  Poulett,  19  Beav.  133. 

3  Dix  v.  Burford,  supra. 

4  Willmott  v.  Jenkins.  1  Beav.  401;  Ex  parte  Dover,  5  Sim.  500;  Davenport  v. 
Stafford,  14  Beav.  319,  331;  Dinsdale  v.  Dudding,  1  Y.  &  C.  Ch.  265;  Freeman 
v.  Dowding,  2  Jur.  N.  S.  1014;  Dovvnes  v.  Bullock,  25  Beav.  54;  Bullock  v. 
Downes,  9  H.  L.  C.  1.  In  Tyson  v.  Jackson,  30  Beav.  384,  Romilly,  M.  R., 
said:  "  It  is  clear,  when  an  executor  retains  the  money  for  payment  of  the 
legacy,  that  he  becomes,  as  in  the  case  of  Phillipo  v.  Munnings,  a  trustee  of  the 
particular  fund  or  sum  of  money  retained  distinctly  from  his  character  of 
executor.  It  is  as  distinct  as  if  the  testator  had  directed  his  executor  to  pay 
the  legacy  over  to  A.  B.  in  trust  for  the  legatee,  and  it  had  actually  been  paid 
over.     A.    B.  would   then   be  a  trustee  for  the  legatee.     So,  too,  the  executor, 

1. lined   that  sum  of  money,   is  in  exactly  the  same  situation." 
^••'    /  1  parte  Hover,  5  Sim.  500. 

statute    of    limitations,   but    upon    the  esced  for  a  great  length  of  time.     St. 

thai,  independently  of  that  statute,  Paul's  Church  v.  Atty.Gen.,  164  Mass. 

eq  lily  will  not  assist  a  person  who  lias  iSS,  200;  seesi/prn,  §§  58-60,  and  notes. 
upon   his    rights,  and    lias   acqui- 


§  205.]  TRUSTS    AND    TRUSTEES.  471 

no  intention  on  his  part  to  claim  it  as  his  own.1  But  if  an  execu- 
tor should  give  notice  to  a  legatee  that  unless  a  legacy  was 
claimed  within  a  certain  period  he  would  not  pay  it,  after  the 
lapse  of  that  period  the  statute  would  undoubtedly  run  in  his 
favor,  because  from  that  time  he  is  treated  as  having  disavowed 
his  trust,2  as  such  notice  would  be  equivalent  to  a  notice  that 
from  that  time  he  should  hold  the  funds  adversely.3  Long  delay 
in  making  a  demand  for  a  legacy,  when  the  party  entitled  knows 
of  his  rights  thereto,  raises  a  presumption,  either  that  it  has  been 
paid  to  him,  or  that  he  intended  to  relinquish  his  claim  to  it.4 
But  each  case  depends  upon  its  peculiar  circumstances;5  and 
where  a  party  is  ignorant  of  his  rights,  an  account  will  be  allowed 
after  a  very  considerable  time  has  elapsed.6  An  executor  does 
not  cease  to  be  a  trustee  upon  a  settlement  of  his  accounts  in  the 
proper  court,  but  he  still  holds  the  assets  remaining  in  his  hands 
for  the  purposes  of  the  will,  and  not  adversely  to  it,7  unless  at  the 
time  of  the  settlement  of  his  accounts,  and  afterwards,  he  denied 
that  it  was  due,  in  which  case  the  statute  begins  to  run  from  the 
date  of  the  settlement;8  and  in  some  cases  such  denial  may  be 
presumed.9  A  bequest  of  personal  property  to  an  executor  "in 
trust  "  to  pay  debts  does  not  in  any  respect  change  his  relation 
to  the  creditors,  or  in  any  manner  change  the  operation  of  the 
statute,  because  in  law  executors  are  regarded  as  trustees  for  the 
creditors  of  his  testator,  and  there  is  nothing  added  to  his  legal 
liability  from    the    mere    circumstance  of    the    testator   having 

1  Kane  v.  Bloodgood,  supra. 
s  Robson  v.  Jones,  27  Ga.  266. 

3  Robson  v.  Jones,  supra;  Lewis  v.  Castleman,  27  Tex.  407;  Coleman  v. 
Davis,  2  Strobh.  (S.  C.)  334. 

4  Thompson  v.  M'Gaw,  2  Watts  (Penn.)  161;  Higgins  v.  Crawford,  2  Ves.  Jr. 
572;  Parker  v.  Ash,  1  Verm.  256.  Thus,  where  a  bill  to  recover  a  legacy  to  a 
married  woman  was  filed  thirty-one  years  after  the  death  of  the  testator, 
twenty-four  years  after  the  settlement  of  the  estate,  and  seventeen  years  after 
the  death  of  the  executor,  and  no  cause  for  the  delay  was  shown,  the  bill  was 
dismissed  on  the  ground  of  a  presumption  that  the  demand  had  been  paid,  aris- 
ing from  the  lapse  of  time.     Peacock  v.  Newbold,  4  N.  J.  Eq.  61. 

6  Dean  v.  Dean,  9  N.  J.  Eq.  425;   Pickering  v.  Stafford,  2  Ves.  Jr.  584. 

6  Pickering  v.  Stafford,  2  Ves.  Jr.  584;  Jones  v.  Turberville,  4  Bro.  C.  C.  115. 

'  Thompson  v.  M'Gaw,  2  Watts  (Penn.)  i6r. 

8  App.  v.  Dreisbach,  2  Rawle  (Penn.)  287;  Doebler  v.  Snavely,  5  Watts 
(Penn.)  225. 

9  Webster  v.  Webster,  10  Ves.  93;  State  v.  Blackwell,  20  Mo.  97;  Fisher  z\. 
Tucker,  1  McCord  (S.  C.)  176. 


472  STATUTES   OF    LIMITATION.  [CHAP.   XVII. 

declared  in  express  terms  that  the  estate  shall  be  subject  to  the 
payment  of  his  debts.1  But  where  the  testator  creates  a  trust  for 
the  payment  of  certain  creditors,  naming  them,  the  rule  would 
doubtless  be  otherwise.2  But  a  bequest  of  real  estate  in  trust  to 
pay  debts  stands  upon  a  different  footing,  because  it  imposes 
upon  the  devisee  a  duty  in  excess  of  his  legal  liability,  unless  the 
statute  of  a  State  makes  both  the  real  and  personal  estate  assets 
in  the  hands  of  an  executor  or  administrator  for  the  payment  of 
the  debts  of  the  testator,  and  such  a  devise  will  suspend  the 
operation  of  the  statute  as  to  all  debts  not  barred  at  the  time  of 
the  testator's  decease.3  As  we  have  already  seen,  in  order  to 
create  an  express  trust,  there  must  be  an  estate  or  interest  vested 
in  the  trustee,  therefore  a  mere  power  in  gross  to  sell  the  realty, 
conferred  upon  the  executor  by  the  terms  of  the  will,  does  not 
constitute  him  a  trustee,  even  though  it  is  for  the  purpose  of  pay- 
ing the  testator's  debts.4  But  an  executor  under  such  a  provision 
in  the  will  may  by  his  conduct,  which  operates  to  put  creditors 
and  claimants  off  their  guard  relative  to  the  collection  of  their 
claims,  suspend  the  operation  of  the  statute  thereon. 

The  fact  that  a  testator  in  his  will  directs  that  all  his  just  debts 
shall  be  paid,  does  not  create  a  trust  for  the  payment  of  his  debts 
which  will  prevent  the  statute  of  limitations  from  applying  to  a 
demand  against  the  estate.5  But  the  rule  is  otherwise  where  the 
debts  are  scheduled,  and  the  schedule  is  referred  to  and  made  a 
part  of  the  will.6 

1  Scott  v.  Jones,  4  CI.  &  F.  382;  Proud  v.  Proud,  32  Beav.  234;  Oughterloney 
v.  Powis,  Amb.  231;  Anon.,  1  Salk.  154;  Blakeway  v.  Strafford.  2  P.  &  W.  373; 
Andrews  v.  Brown,  Prec.  Ch.  385;  Burke  v.  Jones,  2  V.  &  B.  275. 

2  Williamson  v.  Naylor,  2  Y.  &  C.  208,  210,  note. 

3  Burke  v.  Jones,  2  V.  &  B.  275;  Scott  v.  Jones,  CI.  &  F.  282.  But.  not  such 
as  are  barred,  but  when  clear  and  explicit  and  not  merely  implied,  it  suspends 
the  statute  on  debts  which  are  due  at  the  death  of  the  testator.  Agnew  v. 
Fetterman,  4  Penn.  St.  56. 

1  Dickinson  v.  Teasdale,  14  De  G.  J.  &  S.  52.  Thus,  where  an  executor  to 
whom  the  testator  had  given  full  power  to  sell,  dispose  of,  lease,  or  mortgage 
anv  or  all  of  his  real  estate,  for  the  payment  of  his  debts  and  legacies,  and  for 
the  distribution  of  the  balance  among  the  devisees  named  in  the  will,  by  his 
held  himself  out  to  the  devisees  as  engaged  in  winding  up  the  estate,  and 
-lis  hurling  claims  prior  to  theirs,  it  was  held  that  while  he  was  doing  this,  or 
professing  to  do  it,  the  statute  of  limitations  could  not  run  against  those  who 
ha  I  ii"  rights  against  him  until  those  prior  claims  were  paid.  Carroll  v.  Car- 
roll, n  Barb.  (N.  Y.)  293.     See  Jacquet  z.  Jacquet,  27  Beav.  332. 

•  Bloodgood  V.  Brum,  4  San  If.  (N.  V.)  427;   Parker  v.  Carter,  8  Tex.  318. 

'Williamson  v.  Naylor,  2  Y.  &  C.  210,  note. 


§§  206-208.]  TRUSTS   AND    TRUSTEES.  473 

SEC.  206.  Executor  or  Administrator  of  a  Trustee.  —  The  exec- 
utor  or  administrator  of  a  person  who  was  trustee  for  another 
cannot  set  up  the  statute  to  defeat  the  claim  of  the  cestui  que 
trust  for  the  settlement  of  the  trust.1  (a)  Trust  property  held  by 
the  decedent,  which  was  kept  separate  from  his  own  property,  is 
not  assets  in  the  hands  of  his  executor;  and  if  the  trust  funds 
were  invested  by  the  decedent  in  personal  securities,  and  kept 
distinct  from  his  own  estate,  and  they  pass  into  the  hands  of  Irs 
executor  with  the  express  trust  on  their  face,  they  are  in  equity, 
to  all  intents  and  purposes,  the  property  of  the  cestui  que  trust, 
and  equity  will  compel  their  specific  delivery  ;  but  if,  instead  of 
subsisting  in  the  hands  of  the  executor,  as  executor,  it  has 
become  a  mere  money  transaction,  although  it  originated  in  a 
trust,  it  assumes  the  character  of  a  debt,  and  the  cestui  que  trust 
becomes  a  creditor,  and  liable  to  be  barred  as  such.2 

SEC.  207.  Power  to  sell  Property.  —  A  simple  power  conferred 
by  one  person  upon  another  to  sell  property  does  not  create  an 
express  trust  which  suspends  the  operation  of  the  statute  as  to 
the  avails  of  the  sale,  because  the  legal  estate  still  remains  in  the 
person  conferring  the  authority;3  but  it  has  been  held  that  a 
power  of  attorney  given  by  A.  to  B.,  placing  the  whole  property 
of  A.  at  the  disposal  of  B.,  with  full  authority  to  collect  all  claims, 
and  make  sale  of  all  property,  real  or  personal,  and  out  of  the 
interest  of  the  proceeds  to  pay  for  the  maintenance  of  A.,  with  a 
provision  that  B.  shall  account  whenever  desired,  is  a  direct  trust, 
which  lapse  of  time  or  the  statute  of  limitations  will  not  bar.4 
So  where  it  is  the  duty  of  a  trustee  to  give  a  cestui  que  trust 
notice  of  the  sale  of  trust  property,  the  statute  will  not  begin  to 
run  until  such  notice  is  given.5 

SEC.  208.  Effect  on  Cestui  que  Trust  when  Trustee  is  barred. 
Sale  of  Trust  Estate.  —  When  the  legal  title  of  property  is  vested 

'Johnson  v.  Overman,  2  Jones  (N.  C.)  Eq.  182. 

*  Trecothick  v.  Austin,  4  Mas.  (U.  S.  C.  C.)  16. 

*  Dickinson  v.  Teasdale,  supra. 

4  Cook  v.  Williams,  2  N    J.  Eq.  209. 
"Fox  v.  Cash,  11  Penn.  St.  207. 

(a)  See   supra,    §    199.    note.     When  final  accounting  accrues    only  at  the 

trust  duties  are  imposed  on  an  execu-  time  fixed  for  final  distribution.     In  re 

tor,  and  final  adminstration  by  payment  Post's  Estate,  64  N.  Y.  S.  369,  374. 
to   legatees  is  deferred,  the   right  to  a 


474  STATUTES    OF    LIMITATION.  [CHAP.    XVII. 

in  a  trustee  who  can  sue  for  it,  and  fails  to  do  so  within  the  statu- 
tory period,  an  infant  cestui  who  has  only  an  equitable  interest 
will  also  be  barred;1^)  but  the  rule  is  otherwise  when  the  legal 
title  is  vested  in  the  infant,  or  cast  upon  him  by  operation  of 
law.2  The  rule  only  applies  in  cases  where  the  trustee  might 
have  brought  an  action,  but  neglected  to  do  so.  If  he  has 
estopped  himself  from  suing  by  a  sale  of  the  property,  thus  unit- 
ing with  the  purchaser  in  a  breach  of  his  trust,  the  wrong  is  to 
the  beneficiaries,  not  to  him,  and,  while  he  cannot  sue,  the  bene- 
ficiaries, if  under  any  disability,  are  not  affected  by  the  statute.3 

1  Wingfield  v.  Virgin,  51  Ga.  139;  Brady  :.  Walters,  55  id.  25;  Molton  v.  Hen- 
derson, 62  Ala.  426;  William;  1.  Otey,  8  Humph  (Tenn.)  563;  Woodbridge  v. 
Planters'  Bank,  1  Sneed  (Tenn.)  297;  Pendergrast  v.  Foley,  S  Ga.  1;  Goss  v. 
Singleton,  2  Head  (Tenn.)  67. 

5  Wingfield   v.  Virgin,  supra. 

3  Parker  z.  Hall,  2  Head  (Tenn.)  64.1;  Evertson  v.  Tappen,  5  Johns.  (N.  Y.) 
Ch.  497;  Fish  v.  Wilson,  15  Tex.  430;  Jones  v.  Good*win,  10  Rich.  (S.  C.)  Eq. 
226.  Where  trustees,  by  authority  of  an  act  of  assembly,  sold  and  conveyed 
land,  reserving  in  the  deed  a  ground  rent,  to  be  paid  to  the  proprietor  of  the 
land,  when  he  should  be  ascertained,  and  the  proprietor  of  the  land  afterwards 
filed  a  bill  against  the  purchaser  to  recover  the  ground  rents,  the  statute  of  lim- 
itations was  held  to  be  no  bar  to  the  recovery.  Mulliday  v.  Machir,  4  Gratt. 
Va.)  t. 

Where  a  sale  of  infants'  property  was  made  by  a  master,  under  a  decree  by 
which  he  was  directed  to  sell,  and  apply  the  interest,  and  as  much  as  might  be 
necessary  of  the  principal,  of  the  proceeds,  to  the  support  of  the  infants,  it  was 
held  that  he  was  a  trustee,  and  that  the  statute  did  not  run  against  a  suit,  by 
the  infants,  for  an  account,  until  he  had  denied  his  liability.  Houseal  v.  Gibbes, 
Bailey  (S.  C.)  Ch.  482. 

A  person  giving  to  his  children,  by  deed,  property,  real  and  personal,  to  be 
enjoyed  by  them  after  his  death,  himself  retaining  a  life  estate,  is  a  trustee  for 
the  children,  and  cannot  set  up  the  statute  of  limitations  against  them  in  con- 
sequence of  his  possession.     Dawson  v.   Dawson,  Rice  (S.  C.)  Ch.  243. 

A  purchase  at  a  sheriff's  sale,  under  an  agreement  to  hold  the  property  for 
the  benefit  of  the  debtor,  constitutes  a  technical  trust  not  within  the  statute  of 
limitations.  McDonald  v.  May.  1  Rich.  (S.  C.)  Ch.  91.  But  the  purchase  of 
one's  land  at  a  sheriff's  sale,  with  an  agreement  that  he  shall  remain  in  pos- 
session and  refund  the  money  at  an  indefinite  period,  does  not  create  a  "  con- 
tinuing trust  "  to  bar  the  statute.  Hughes  v.  Hughes,  Cheves  (S.  C.)  33.  If  a 
^h'-riff  and  a  judgment  creditor  hold  money  in  trust  to  pay  over  to  other  cred- 
itors who  have  appealed  from  that  judgment,  thev  cannot  avail  themselves  of 
iIm-  l.ar  of  the  statute.     Gay  v.  Edwards,  30  Mi^s.  218. 

(a)   In    Willson     v.    Louisville    Trust  trust  property  from  the  actual  trustee, 

mi2    Ky.    "}22,   this    rule   was    helrl  knowing  that  the  latter  was  committing 

to  apply  in  tli"  case  of  a  construe-  a  breach  <>f  trust.     See  12   II  irvard  I.. 

;   ■■  e  wii<i  bet  ame  so  by  buying  R  •••.  [32. 


§  209-J  TRUSTS   AND    TRUSTEES.  475 

And  if  the  cestui  que  trust  was  ignorant  of  the  sale,  and  the  pur- 
chaser knew  of  the  trust,  the  cestui  que  trust  will  not  be  barred. 
If  one  having  notice  of  the  trust  purchases  of  the  husband  and 
trustee  a  negro  held  in  trust  for  the  wife,  he  will  not  acquire  a 
title  under  the  statute  of  limitations  by  a  continued  possession  of 
the  negro  for  the  statutory  period,  the  wife  being  ignorant  of  the 
sale.1  The  rule  is  that  a  person  who  purchases  of  a  trustee  the 
whole  or  part  of  the  trust  property,  bona  fide,  and  without  notice 
or  knowledge  of  the  trust,  will  acquire  3  good  title  as  against  the 
cestui  que  trust;  2  but  a  person  who  purchases  trust  property  with 
notice  of  the  trust  holds  the  title  as  trustee,  and  stands  in  the 
place  of  his  grantor,  and  is  chargeable  with  the  trust.3 

Sec.  209.  Factors  and.  Agents.  —  A  common  and  very  important 
fiduciary  relation  is  that  of  an  agent  or  factor  to  his  principal. 
If  a  person  acts  as  a  general  agent  for  another,  and  there  is  a  cur- 
rent account,  the  rule  is  said  to  be  that  the  statute  does  not  begin 
to  run  until  the  expiration  of  the  agency ; 4  (a)  but  in  Connecticut 5 
a  doctrine  antagonistic  to  this  was  adopted  as  to  an  agent  for 
the  collection  of  rents,  the  sale  of  lands,  etc.,  and  given  full 
authority  and  control  in  that  respect  over  the  plaintiff's  land,  and 
the   recovery   in   that   case  was  restricted  to  such   items  as  had 

Where  an  agent  for  the  purchase  of  land  took  a  title  in  his  own  name  for  the 
benefit  of  the  principal,  it  was  held  that  the  statute  did  not  run  against  the 
principal's  claim  to  the  land.     Hutchinson  v.  Hutchinson,  4  Desaus.  (S.  C.)  77. 

'Jones  v.  Goodwin,  supra. 

1  Wyse  v.  Dandridge,  35  Miss.  672;  Henderson  v.  Dodd,  1  Bailey  (S.  C.)  Eq. 
138;  Prevo  v.  Wallers,  5  111.  35;  Hudnal  v.  Wilder,  4  McCord  (S.  C.)  294; 
Christmas  v.  Mitchell,  3  Ired.  (N.  C.)  Eq.  535;  Bracken  v.  Miller,  4  W.  &  S. 
(Penn.)  102. 

3  Stewart  v.  Chad  wick,  8  Iowa,  463;  Pinson  v.  Ivev,  1  Yerg.  (Tenn.)  296; 
Jones  v.  Shattuck,  41  Ala.  262;  Murray  v.  Ballou,  1  Johns.  (N.  Y.)  Ch.  566; 
Webster  v.  French,  it   III.  254. 

4  Hopkins  v.  Hopkins,  4  Strobh.  (S.  C.)  Eq.  207.  See  Parris  7/.  Cobb,  5  Rich. 
(S.  C.)  Eq.  450:  Estes  ?'.  Stokes,  2  id.  133.  This  principle  is  well  illustrated  in 
a  New  York  case,  Davy  v.  Field,  1  Abb.  (N.  Y.)  App..Dec.  4go,  in  which  it  was 
held  that,  where  a  sheriff  collects  money  for  several  creditors  upon  successive 
attachments  against  a  single  debtor,  the  fund  will  be  treated  as  entire,  and  the 
statute  does  not  begin  to  run  against  any  creditor  from  the  time  when  his  claim 
was  collected,  but  from  the  time  when  the  whole  is  called. 

5  Hart's  Appeal,  32  Conn.  520. 

(a)  An  agent  who  stands  in  a  fiduciary  v.  Garrick,  L.  R.  5  Ch.  233;  hire  Bell,  34 

relation  to  his  principal  cannot  set  up  Ch.    D.  462;  Dooby  v.   Watson,  39  Ch. 

the  statute  of  limitations  to  bar  a  suit  D.  17S. 
by  the  latter  for  an  account.     Burdick 


476  STATUTES   OF   LIMITATION.  [CHAP.   XVII. 

accrued  within  six  years  next  preceding  the  bringing  of  the 
action.  It  is  held  that,  where  the  agency  is  special,  the  statute 
attaches  upon  the  consummation  of  each  transaction  or  the 
accrual  of  each  item.1  Where  an  agent  receives  money  for  his 
principal,  it  is  generally  held  that  the  statute  does  not  attach 
until  a  demand  has  been  made  upon  him  therefor  by  the  princi- 
pal.2 But  this  question  depends  largely  upon  the  contract 
between  the  agent  and  his  principal  relative  to  accounting.  If  a 
person  is  constituted  an  agent  for  the  collection  of  rents,  the  sale 
of  property,  etc.,  and  agrees  to  receive  the  money  and  account 
for  the  same,  he  is  treated  as  agreeing  to  account  immediately 
upon  the  receipt  of  the  money  and  without  demand;3  but  if 
money  is  deposited  with  him  to  be  invested,  and  he  agrees  to 
account  therefor  on  demand,  a  right  of  action  does  not  accrue 
against  him  until  a  demand  has  been  made  upon  him  for  an 
account,  and  consequently,  whether  the  money  has  been  loaned 
by  him,  or  converted  to  his  own  use  in  violation  of  his  trust,  the 
statute  does  not  attach  until  demand  has  been  made.4  As 
between  a  factor  and  consignor  of  goods,  sent  to  the  former  to 
be  sold,  in  the  absence  of  any  special  contract  relative  to  an 
accounting  for  the  same,  he  is  treated  as  contracting  to  account 
therefor  on  demand,  consequently  the  statute  does  not  run 
against  the  consignor  until  demand  for  an  accounting  is  made  by 
him,5  or  an  account  is  rendered  by  the  factor  to  the  consignor, 
in  which  case  the  statute  begins  to  run  from  the  time  of  the 
rendition  of  the  account,6  or  directions  from  the  consignor  to 
remit  the  proceeds.7 

1  Hopkins  v.  Hopkins,  supra. 

*  Taylor  v.  Spears,  8  Ark.  429;  Hyman  v.  Gray,  4  Jones  (N.  C.)  L.  155;  Gard- 
ner v.  Peyton,  5  Cranch  C.  C.  560;  Lever  v.  Lever,  1  Hill  (S.  C.)  Ch.  62;  Merle 
v,  Andrews,  4  Tex.  200;  Judah  v.  Dyott,  3  Blackf.  (Ind.)  324. 

3  Hart's  Appeal,  supra. 

*  Baker  v.  Joseph,  16  Cal.  173;  s.  p.  Sadowsky  v.  M'Farland,  3  Dana  (Ky.) 
204.  For  a  more  extended  review  of  the  rules  and  authorities  bearing  upon 
this  question,  see  supra.  Chap.  XI. 

sBaird  v.  Walker,  12  Barb.  (N.  Y.)  298;  Topham  v.  Braddick,  1  Taunt.  571; 
Green  v.  Johnson,  3  G.  &  J.  (Md.)  389;  Collins  v.  Benning,  12  Mod.  444;  Hyman 
iy,  4  Jones  (N.  C.)  L.  155;   Kane  v.  Cook,  8  Cal.  449. 

'Murray  v.  Coster,  20  Johns.  (N.  Y.)  576;  Farmers'  &  Mechanics'  Bank  v. 
Planters'  Bank,  10  G.  &  J.  (Md.)  422;  Clark  v.  Moody,  17  Mass.  145.  It  is  a 
factor's  <iuty  to  account  in  a  reasonable  time,  without  demand.  Eaton  v.  Wal- 
ton, 32  W  H.  352;  Lyle  v.  Murray,  4  Sandf,  (N.  Y.)  590. 

T  Ferris  v.  Paris,   to  Johns.  (N.   Y.)  285;   Burns   v.    Pillsbury,    17    N.    H.  66; 


§2IO.j  TRUSTS   AND    TRUSTEES.  477 

SEC.  210.  Partners.  —  The  statute  does  not  run  between  part- 
ners so  long  as  the  partnership  continues,  and  each  partner  is  in 
the  exercise  of  his  right,  nor  necessarily  after  its  dissolution, 
where  there  are  debts  due  to  or  from  it.1  There  is  no  definite 
rule  of  law  that  the  statute  begins  to  run  immediately  upon  the 
dissolution  of  the  partnership,  and  the  question  as  to  whether  it 
does  or  not  must  depend  upon  the  peculiar  circumstances  of  each 
case.2  But  unless  there  is  some  covenant  or  agreement,  express 
or  implied,  fixing  a  period  for  accounting  beyond  the  time  of  dis- 
solution, or  circumstances  that  render  an  accounting  impossible, 
the  statute  begins  to  run  from  the  time  when  the  partnership  is 
in  fact  dissolved.3  If  at  the  date  of  dissolution  there  are  debts 
due  to  or  from  the  firm,  the  partnership  liability  continues  until 
such  matters  are  liquidated,  or  until  they  are  barred  by  the 
statute;  and,  if  one  of  the  partners  is  appointed  to  liquidate  the 
affairs  of  the  firm,  he  may  bind  the  late  firm  by  a  note  given 
for  money  borrowed  by  him  to  pay  the  firm  debts ; 4  and  if  no  one 
of  the  partners  is  clothed  with  special  authority  to  liquidate  the 
affairs  of  the  firm,  any  one  of  the  partners  may  bind  the  others 
by  notes  given  in  satisfaction  of  a  debt  of  the  firm;5  but  none  of 
the  partners  have  authority  to  bind  the  others  by  any  promise  to 
pay  a  debt  of  the  firm  which  is  barred  by  the  statute;6  and 
except  where  provision  is  otherwise  made  by  statute,  one  partner 
may  bind  another  by  a  promise  to  pay  a  debt  upon  which  the 
statute  has  not  run.7     Upon  the  death  of  a  partner,  the  firm  is  ipso 

Holden  v.  Crafts.  4  E.  D.  Sm.  (N.  Y.  C.  P.)  490;  Cooley  v.  Betts,  24  Wend.  (N. 
Y.)  203. 

1  McNair  v.  Ragaland,  r  Dev.  (N.  C.)  En.  533,-  Hammond  v.  Hammond,  20 
Ga.  556.  In  Atwater  v.  Fowler,  1  Edw.  (N.  Y.)  Ch.  417,  it  was  held  that  where 
two  persons  are  partners  in  certain  stocks,  which  are  left  by  one  in  the  hands  of 
the  other  for  sale,  the  statute  does  not  begin  to  run  until  the  stocks  are  finally 
disposed  of.  Miller  v.  Miller,  L.  R.  S  Eq.  499;  Foster  v.  Hodgson,  19  Ves.  183; 
Millington  v.  Holland,  W.  R.  Nov.  22,  1869;  Robinson  v.  Alexander,  2  CI.  &  F. 
717. 

!  Massey  v.  Tingle,  29  Mo.  437. 

3Taylor  v.  Morrison,  7  Dana  (Ky.)  241;  Massey  v.  Tingle,  supra;  Hammond 
v.  Hammond,  supra. 

4  McCowin  v.  Cubbison,  72  Penn.  St.  358;  Davis's  Estate,  5  Whart.  (Penn.) 
530;   Robinson  v.  Taylor,  4  Penn.  St.  242. 

6  Ward  v.  Tlyer,  52  Penn.  St.  393. 

6  Bush  v.  Stowell,  71  Penn.  St.  208;  Levy  v.  Cadet,  17  S.  &  R.  (Penn.)  126; 
i?eppert  v.  Colvin,  48  Penn.  St.  248. 

1  McCoon  v.  Galbraith,  29  Penn.  St.  293. 


478  STATUTES    OF    LIMITATION.  [CHAI*.    XVII. 

facto  dissolved,  and  the  statute  begins  to  run  for  and  against  his 
personal  representatives  at  once.1  There  is  one  serious  difficulty 
in  the  application  of  this  doctrine,  and  that  is,  where,  after  the 
lapse  of  six  years,  valuable  partnership  assets  come  into  the  hands 
of  the  surviving  partner,  in  which  the  estate  of  the  deceased  part- 
ner ought  to  participate.2 

1  Weisman  v.  Smith,  6  Jones  (N.  C.)  Eq.  124.  In  Knox  v.  Gye,  L.  R.  5  H.  L. 
674,  it  was  held  that  a  court  of  equity  will  not  decree  an  account  between  a. 
surviving  partner  and  a  deceased  partner's  estate  after  the  lapse  of  six  years, 
whether  the  surviving  partner  be  plaintiff  or  defendant,  and  that  the  punctum 
temporis  from  which  time  commences  to  run  is  the  date  at  which  the  partner- 
ship estate  is  vested  in  the  surviving  partner.  See  Lackey  v.  Lackey,  Prec.  in 
Ch.  518.  Lord  Hatherley  dissented  in  K:ox  v.  Gye.  In  Tatam  v.  Williams,  3 
Hare,  347,  Wigram,  V.  C,  said:  "  In  this  court  there  is  direct  and  very  high 
authority  for  the  proposition  that  a  court  of  equity  will  not,  after  six  years' 
acquiescence,  *  *  *  decree  an  account  between  a  surviving  partner  and 
the  estate  of  a  deceased   partner." 

*  This  difficulty  was  anticipated  in  Knox  v.  Gye,  by  Lord  Colonsay,  who  said: 
"  I  do  not  say  that  if  a  sum  is  unexpectedly  recovered  after  the  lapse  of  six 
years,  the  executor  of  the  deceased  partner,  though  he  has  lost  the  right  to  sue 
for  an  account  of  the  partnership  concerns,  may  not  in  another  kind  of  suit 
demand  a  share  of  the  particular  fund  so  recovered,"  And  Lord  Chelmsford 
said:  "  There  may  be  a  difficulty  in  determining  what  is  the  right  of  an  executor 
of  a  deceased  partner  when  he  has  allowed  the  statute  of  limitations  10  run 
against  his  claim  to  an  account,  and  a  debt  has  been  received  by  the  surviving 
partner  after  the  six  years  has  elapsed.  But  this  is  a  difficulty  occasioned  by 
his  own  laches,  and  I  see  no  reason  why,  if  he  thinks  that  his  interest  in  the 
sum  received  has  not  been  absorbed  by  its  application  to  pay  debts  due  from 
the  partnership,  he  should  not  have  a  right  to  sue  for  his  share  in  this  sum  (a 
very  different  thing  from  a  suit  for  an  account  of  all  the  partnership  transac- 
tions), the  surviving  partner  being  at  liberty  to  defend  himself  by  alleging  and 
proving  that  the  whole  sum  received  has  been  applied,  or  was  applicable,  to 
the  payment  of  partnership  liabilities." 

It  may  be  remarked,  however,  that  according  to  the  dictum  of  Lord  Westbury 

in  the  same  case,  the  representative  of  a  deceased  partner  has  no  specific  interest 

in  or  claim   upon  any  part  of  the  partnership  estate,  so  that  it  seems  doubtful 

how  far  he  would  be  able,  as  suggested  by  Lord  Colonsay,  to  sue  for  the  share 

of  any  newly  acquired  asset  as  prima  facie  due  to  him,  and  in  thai  way,  in  fact, 

obtain  an    account    from    the   defendant   by  throwing  the  onus  of  proof   (which 

would,  in   fact,  require   an   account   of   the  partnership   transactions)  upon  the 

1  int,  to  show  that  the  whole  or  part  of  such  plaintiff's  prima  facie  share 

was  applicable  to  satisfy  partnership  liabilities.     So,   too,   it  is  difficult  to  see 

how  laches  could   oe  imputed  on   the  part  of  the  representatives  of  a  deceased 

partner,  at  all  events  in   respect  of  unexpected  assets  which   fall  in  after  the 

of   six   years,  in    respect   that  he   has  not  kept    alive  his  right  to  have  an 

lilt  by  lilinir  a  bill,  or  even,  as  suggested  bv  Lord  Hatherley,  by  filing  con- 

tiuilOUS  1'ills  at  sexennial  intervals.      It  was  contended  that  a  surviving  partner 


§211.]  TRUSTS   AND   TRUSTEES.  479 

Where  partnership  affairs  are  unsettled  at  the  time  the  firm  is 
dissolved,  and  by  a  written  agreement  one  of  the  partners  is 
designated  to  keep  and  dispose  of  the  firm  assets  at  such  prices 
and  upon  such  terms  as  he  can,  a  continuing  trust  is  thereby 
created,  and  the  statute  does  not  begin  to  run  in  favor  of  the 
liquidating  partner  so  long  as  he  acts  under  the  trust  or  admits 
its  continuance.1 

Sec.  211.  Acknowledgment  toy  one  Partner.  —  As  long  as  a 
partnership  continues,  each  partner  is  an  agent  for  the  purpose 
of  making  an  acknowledgment  under  the  statute  of  limitations.2^) 

Under  the  old  theory  of  acknowledgment,  an  acknowledgment 
made  by  a  liquidating  partner  after  a  dissolution  of  partnership 
might  revive  a  debt;3  but  under  the  new  theory,  and  since  the 
essential  changes  in  these  statutes  both  in  this  country  and 
England,  such  agency  will  terminate  at  dissolution,  and  after  a 
partnership  is  dissolved  one  of  the  late  firm  cannot  by  his  act  or 
admission  involve  his  co-partner  in  any  new  legal  liability.4  {b) 
It  is  possible,  however,  that  it  might  be  otherwise  if  the  admis- 
sion consisted  of  a  part  payment  out  of  assets  belonging  to  the 
late  firm.5 

A  right  of  action  to  sue  for  the  settlement  of  partnership  affairs 
does  not,  as  a  matter  of  law,  accrue  at  the  time  of  the  dissolution 
of  the  firm,  but  depends  on  circumstances.6  (c) 

was  a  trustee  of  the  partnership  assets,  and  as  such  not  within  the  statute;  but 
this  contention  was  overruled,  Lord  Westbury  expressing  a  clear  opinion  that 
there  was  no  fiduciary  relation  between  a  surviving  partner  and  the  representa- 
tives of  one  deceased,  and  that  the  former  was  not  a  trustee  in  the  strict  and  full 
sense  of  the  term,  the  term  being  so  used  only  by  a  convenient  but  deceptive 
metaphor,  and  the  rights  of  the  parties  being  strictly  legal  rights. 

1  Causler  v.  Wharton,  62  Ala.  358. 

*  Watson  v.  Woodman,  L.  R.  20  Eq.  730. 

3  Wood  v.  Braddick,  1  Taunt.  104;   Pritchard  v.  Draper,  1  R.  &  My.  191. 

4  Watson   v.  Woodman,   L.   R.    20  Eq.    721;  Thompson    v.  Waithman,  3  Drew 
628;   Bristow  v.  Miller,  11  Ir.  L.  R.  461:    Kilgour  v.  Finlyson,  1    H.  Bl.  155. 

6  Watson  v.  Woodman,  L.  R.  20  Eq.  721. 

6  When  the  right  of  action  accrues,  so  as  to  set  the  statute  of  limitations  in 
motion,  depends  upon  circumstances,  and  cannot  be  held  as  matter  of  law  to 

(a)  A  part  payment  of  a  firm  debt  by  (i>)  See  Kerper  v.  Wood  (Ohio),  15  L. 
one  partner  without  his  co-partner's  R.  A.  656,  andnote. 
knowlelgeor  authority,  takes  the  debt  (r)  Suits  between  partners  to  obtain 
out  of  the  statute  of  limitations.  Bux-  an  account  and  settlement  of  the  part- 
ton  v.  Edwards,  134  Mass.  567;  Hard-  nership  affairs  are  subject  to  the  stat- 
ing v.  Butler,  156  Mass.  34.  See  Tucker  uie  of  limitations,  which  begins  to  run 
v.   Tucker,  [iSt)4]  3  Ch.  429.  at  the  date  of  the  dissolution,  in  the  ab- 


480  STATUTES    OF    LIMITATION.  [CHAP.   XVII. 

When  the  partnership  affairs  are  being  wound  up  without 
antagonism  between  the  parties,  and  assets  are  being  realized  and 
debts  paid,  the  statute  does  not  begin  to  run.  Where  the  disso- 
lution is  effected  by  the  death  or  assignment  of  one  partner,  the 
surviving  or  solvent  partners  hold  the  partnership  property  for 
the  purpose  of  closing  up  its  affairs.  And  where  there  is  an 
agreement  that  one  partner  shall  close  up  the  business  of  the  firm 
and  settle  its  affairs,  which  have  been  under  his  management,  a 
trust  has  been  created  and  the  statute  does  not  begin  to  run 
against  the  right  to  account,  so  long  as  such  partner  acts  under 
the  trust  until  he  repudiates  it  himself.1 

If  a  partner  dies  during  the  partnership,  it  seems  that  the 
maxim  contra  non  volentem  agere  non  currit  lex  prevails,  and  that 
time  will  not  run  against  his  estate,  and  in  favor  of  the  surviving 
partner,  till  there  is  administration  to  the  estate  of  the  dead  part- 
ner, unless  there  have  been  disputes  so  as  to  give  a  cause  of  action 
before  the  death  of  the  dead  partner.2 

SEC.  212.  How  Trustee  may  put  Statute  in  Operation  in  his 
Favor.  —  It  is,  as  previously  stated,  a  well-established   rule   in 

arise  at  the  date  of  the  dissolution,  or  to  be  carried  back  by  relation  to  that  date. 
Todd  v.  Rafterty,  30  N.  J.  Eq.  254;  Partridge  v.  Wells,  id.  176;  Prentice  v. 
Elliott,  72  Ga.  154;  Hammond  v.  Hammond,  20  Ga.  556;  Massey  v.  Tingle,  29 
Mo.  437;  McClung  v.  Capehart,  24  Minn.  17;  Hendy  v.  March,  75  Cal.  566; 
Foster  v.  Rison,  17  Gratt.  321;  Boggs  v.  Johnson,  26  W.  Va.  821;  Alwater  v. 
Fowler,  1  Ediv.  Ch.  423,  6  N.  Y.  Ch.  (L.  ed.)  195.  In  Causler  v.  Wharton,  62  Ala. 
358,  the  court  held  that  where  one  partner,  by  a  written  agreement  with  the 
other,  left  the  partnership  assets  with  him  to  dispose  of,  whenever  he  could  do 
so  at  a  fair  price,  a  continuing  trust  was  thereby  created,  and  the  bar  of  the 
statute  of  limitations  would  not  begin  to  run  against  the  right  to  an  account  of 
the  partnership  dealings,  so  long  as  the  party  to  whom  the  assets  were  delivered 
acted  under  the  trust  or  admitted  that  it  was  still  continuing. 

In  Adams  v.  Taylor,  14  Ark.  62,  it  was  held  that  "  the  relation  between  co- 
partners does  not  create  such  a  trust  as  will  exempt  a  bill  for  a  mere  account 
and  settlement  from  the  operation  of  the  statute  of  limitations,  or  the  analogous 
i>ar  by  lapse  of  time,  or  staleness  of  the  demand."  McGuire  v.  Ramsey,  9 
Ark.  519.     See  Chouteau  v.  Barlow,  no  U.  S.  238. 

1  Riddle  v.  Whitehill,  135  U.  S.  621. 

*  Spann  v.  Fox,  1  Ga.  Dec.  1;  Gardner  v.  Cummings,  1  Ga.  Dec.  Part  I.; 
Banning  on  Limitations,   204-208. 

sence   of    any  express  contract,   or  of  Richardson   v.   Gregory,    126   111.    166; 

•  ondui  '   "f  »he  parties  working  an  ex-  Campbell  t.  Clark,  101  Fed.  Rep.  972; 

tension  of   the   time   for  bringing  suit.  Graj  v.  Kerr,  46  Ohio  St.  652;  Gilmore 

Currier  v.  St  udley,  159  Mass.  17;  Noyes  v.  Ham  (142  N.  Y.  1),  40  Am.  St.  Rep. 

'  rawley    i"  (  h.  I).  31 .  39;  Allen  ?■.  554:  supra,  ^  24. 
Woonsockel    <<>.,   11    R.    I.    288,    2<j=; 


'§  212.]  TRUSTS   AND   TRUSTEES.  48 1 

regard  to  direct,  technical  trusts,  that,  so  long  as  the  trust  sub- 
sists, the  rights  of  the  cestui  que  trust  will  not  be  barred  by  the 
possession  of  the  trustee,  however  long  continued,  as  the  posses- 
sion of  the  trustee  is  treated  as  the  possession  of  the  cestui  que 
trust,  and  although  he  does  not  execute  his  trust,  his  mere  pos- 
session and  inactivity  as  to  the  trust,  of  themselves,  afford  no 
indicia  of  an  adverse  claim  by  him.'  But  if  the  trustee  denies 
the  trust,  and  assumes  absolute  ownership  of  the  trust  property 
in  such  a  manner  that  the  cestui  que  trust  has  actual  or  construc- 
tive notice  of  the  repudiation  of  the  trust  by  the  trustee,  the 
statute  attaches  and  begins  to  run  from  that  time  against  the 
cestui  que  trust,2  unless  the  latter  is  at  the  time  under  some  one 

1  Redwood  v.  Riddick,  4  Munf.  (Va.)  222;  Howard  v.  Aiken,  3  McCord  (S.  C.) 
467;  North  v.  Barnum,  12  Vt.  205;  Overstreet  v.  Bates,  1  J.  J.  Marsh.  (Ky.) 
370;  Thompson  v.  Blair,  3  Murph.  (N.  C.)  583;  Wamburzee  v.  Kennedy,  4 
Desau.  (S.  C.)  Eq.  474;  Armstrong  v.  Campbell,  3  Yerg.  (Tenn.)  201;  Martin  v. 
Jackson,  27  Penn.  St.  504;  Jones  v.  Persons,  2  Hawks  (N.  C.)  269;  Goodhue  v. 
Barnwell,  1  Rice  (S.  C.)  Eq.  198;  Bowman  v.  Wathen,  2  McLean  (U.  S.  C.  C.) 
376;  Alexander  v.  M'Murry,  8  Watts  (Penn.)  504;  Hovenden  v.  Annesley,  2  Sch. 
&  Lef.  633;  Hemenway  v.  Gates,  5  Pick.  (Mass.)  321;  Steel  v.  Henry,  9  Watts 
(Penn.)  523;  Fishwick  v.  Sewell,  4  H.  &  J.  (Md.)  393;  Lawson  v.  Blodgett,  20 
Ark.  195;  Young  v.  Mackall,  3  Md.  Ch.  395;   McDonald  v.  Sims,  3  Ga.  383. 

8  When  the  trustee  openly  disavows  his  trust,  the  statute  begins  to  run. 
Thomas  v.  Merry,  113  Ind.  83;  Reynolds  v.  Sumner,  126  111.  5S;  Ward  v. 
Harvey,  111  Ind.  471;  Reizenstein  v.  Marquardt,  75  Iowa  294.;  Gilbert  v. 
Sleeper,  71  Cal.  290;  Roach  v.  Caraffa,  85  Cal.  436;  Hill  v.  McDonald,  58  Hun 
{N.  Y.)  322;  Hamilton  v.  Pritchard,  107  NT.  C.  12S;  Marshall's  Est.  13S  Penn. 
St.  285;  State  v.  Shires,  39  Mo.  App.  560;  Bacon  v.  Rives,  106  U.  S.  99;  Ord  v. 
De  La  Guerre,  54  Cal.  298;  Governor  v.  Woodworth,  63  111.  254;  Hayward  v. 
Gunn,  82  III.  385;  Grant  v.  Burr,  54  Cal.  298;  Belknap  v.  Gleason,  ti  Conn. 
160;  Hickox  v.  Elliott,  22  Fed.  Rep.  13;  Hartley  v.  Head,  71  Ga.  95;  Re  Mc- 
Kinley,  15  Fed.  Rep.  912;  McGuire  v.  Linneus,  74  Me.  344;  Robertson  v.  Dunn, 
87  N.  C.  191;  Hastie  v.  Aiken,  67  Ala.  313;  Bonner  7<.  Young,  68  Ala.  35;  Zuck 
v.  Culp,  59  Cal.  142;  Lakin  v.  Sierra  Buttes  Gold  Mine  Co.,  25  Fed.  Rep.  337; 
Bostwick  v.  Dickson,  65  Wis.  593;  Fox  v.  Tay,  89  Cal.  339;  Smith  v.  Glover, 
44  Minn.  260;  Butler  v.  Hyland,  89  Cal.  575;  Byars  v.  Thompson,  80  Tex.  468; 
Hill  v.  McDonald,  58  Hun  (N.  Y.)  322;  Hinton  v.  Pritchard,  107  N.  C.  128: 
Wilson  v.  Brookshire,  126  Ind.  497;  Conger  v.  Lee,  75  Tex.  114;  Wren  v.  Hol- 
lovvell,  52  Ark.  76;  Dyer  v.  Waters,  19  Atl.  (N.  J.  Eq.)  129;  A'  Camp,  50  Hun 
(N.  Y.)  388;  Murphy  v.  Murphy,  80  Iowa,  740;  Hall  v.  Ditto,  11  Ky.  L.  R.  667; 
Charter  Oak  L.  Ins.  Co.  v.  Gisborne,  5  Utah,  319;  Chadwick  v.  Chadwick,  59 
Mich.  87;  Robson  v.  Jones,  27  Ga.  266.  Where  an  act  is  done  by  the  trustee 
purporting  to  be  an  execution  of  the  trust,  he  is  from  that  time  regarded  as 
standing  at  arm's  length  from  the  cestui  que  trust,  who  is  then  put  to  the  asser- 
tion of  his  claim  at  the  hazard  of  being  barred  by  the  statute.  Thus,  where  an 
infant  executed  a  receipt  as  a  discharge  in  full  of  a  legacy  to  which  he  was 
[stats,  of  lim. —  31] 


482  STATUTES   OF   LIMITATION.  [CHAP.   XVIL 

of  the  statutory  disabilities,  or  is  under  undue  influence  proceed- 
ing from  the  trustee.1  Such  denial  of  the  trust,  and  assertion  of 
an  adversary  claim  in  himself,  is  an  abandonment  of  the  fiduciary 
character  in  which  he  has  stood  to  the  property,  and  from  that 
time  the  claim  of  the  cestui  qui  trust  is  subject  to  the  operation 
of  the  statute.2  But  in  order  to  put  the  statute  in  motion,  it 
must  appear  that  the  cestui  que  trust  had,  or  ought  to  have  had, 
knowledge  of  the  trustee's  denial,  repudiation,  or  adverse  claim, 
and  that  the  trustee  has  been  guilty  of  no  fraud  in  that  regard.3 

entitled  in  right  of  his  wife,  and  four  years  after  filed  a  bill  against  the  execu- 
tors for  the  recovery  of  her  legacy,  it  was  held  that  he  was  barred.  Coleman 
v.  Davis,  2  Strobh.  (S.  C.)  Eq.  334;  Moore  v.  Porcher,  1  Bailey  (S.  C.)  Ch.  195; 
Britton  v.  Lewis,  8  Rich.  (S.  C.)  Eq.  271;  Gisborne  v.  Charter  Oak  L.  Ins.  Co., 
142  U.  S.  326;  Miles  v.  Thorne,  38  Cal.  335;  Seymour  v.  Freer,  8  Wall.  (U.  S.) 
202;  Bacon  v.  Rives,  106  U.  S.  99;  Henry  v.  Confidence  Gold  and  Silver  M. 
Co.,  1  Nev.  619.  In  Lammer  v.  Stoddard,  103  N.  Y.  672,  the  court  said: 
"  Edward  Lammer  was  not  the  actual  trustee  of  this  fund,  and  he  never 
acknowledged  a  trust  as  to  the  money  loaned  him.  He  could,  at  most,  have 
been  declared  a  trustee  ex  maleficio^  or  by  implication  or  construction  of  law, 
and  in  such  a  case  the  statute  begins  to  run  from  the  time  the  wrong  was  com- 
mitted, by  which  the  parly  became  chargeable  as  trustee  by  implication."  Wil- 
merding  v.  Russ,  33  Conn.  67;  Ashurst's  Appeal,  60  Penn.  St.  290;  McClane 
v.  Shepherd,  21  N.  J.  Eq.  76;  Decouche  v.  Savetier,  3  Johns.  Ch.  190,  216: 
Kane  v.  Bloodgood,  7  id.  90;  Ward  v.  Smith,  3  Sandf.  Ch.  592;  Higgins  v. 
Higgins,  14  Abb.  N.  C.  13;  Clarke  v.  Boorman,  18  Wall.  493;  Perry  on  Trusts, 
§865. 

1  Keaton  v.  McGwier,  24  Ga.  217;  Wheeler  v.  Piper,  3  Jones  (N.  C.)  Eq.  249; 
Welborn  v.  Rogers,  24  Ga.  558. 

*  Murdock  v.  Hughes,  15  Miss.  219;  Kane  v.  Bloodgood,  siipta;  Smith  v. 
Ricords,  52  Mo.  5S1;  Farnam  v.  Brooks,  9  Pick.  (Mass.)  212;  White  v.  Leavitt, 
20  Tex.  703;  Andrews  v.  Smithwick,  20  id.  in;  Lucas  v.  Daniels,  34  Ala.  188; 
Boone  v.  Chiles,  10  Pet.  (U.  S.)  177;  Pipher  v.  Lodge,  4  S.  &  R.  (Penn.)  310; 
Robson  v.  Jones,  27  Ga.  266;  Willison  v.  Walkins,  3  Pet.  (U.  S.)  52;  Cunning- 
ham v.  McKindley,  22  Ind.  149;  Green  v.  Johnson,  3  G.  &  J.  (Md.)  89;  Starke 
V.  Starke,  3  Rich.  (S.  C.)  438;  Sollee  v.  Croft,  7  Rich.  Eq.  (S.  C.)  34;  Perkins  v. 
Carimell,  4  Harr.  (Del.)  270;  Sheldon  v.  Sheldon,  3  Wis.  699;  Tinnen  v.  Mebane, 
10  Tex.  246. 

3  Keaton  v.  Greenwood,  8  Ga.  97;  Fox  v.  Cash,  n  Penn.  St.  207;  Roberts  v. 
Berdell,  61  Barb.  (N.  Y.)  37;  52  N.  Y.  531;  Moffatt  v,  Buchanan,  11  Humph. 
(Tenn.)  369;  Grumbles  v.  Grumbles,  17  Tex.  472;  Houseal  v.  Gibbs,  Bailey 
(S.  C.)  Eq.  482;  Robinson  v.  Hook,  4  Mason  (U.  S.)  152. 

When  the  trust  is  repudiated  by  clear  and  unequivocal  words  and  acts  of  the 
trustee,  who  claims  to  hold  the  trust  property  as  his  own,  and  such  repudiation 
and  claim  are  brought  to  the  notice  of  the  beneficiary  in  such  a  manner  that  he 
is  called  upon  to  assert  his  equitable  rights,  the  statute  of  limitations  will  begin 
to  run  from  the  time  such  repudiation  and  claim  came  to  the  knowledge  of  the 
beneficiary.      Turner  v.   Smith,    11    Tex.   620;   Williams   v.    First   Presbyterian 


$2I3-J  TRUSTS   AND   TRUSTEES.  483 

SEC.  213.  Exceptions  to  the  Rule  relative  to  Express  Trusts.  — 
The  rule  that  a  direct  and  technical  trust  is  not  within  the 
operation  of  the  statute  is  subject  to  two  exceptions:  first,  that 
no  open  denial  or  repudiation  of  the  trust  is  brought  home  to  the 
knowledge  of  the  cestui  que  trust,  which  requires  him  to  act  as 
upon  an  asserted  adverse  title;  and,  second,  that  no  circumstances 
exist  to  raise  a  presumption  from  lapse  of  time  that  the  trust  has 
been  extinguished.1  There  is,  as  we  have  seen  in  a  former 
chapter,2  a  defence  peculiar  to  courts  of  equity  founded  on  lapse 
of  time  and  the  staleness  of  the  claim,  where  no  statute  of  limita- 
tions applies  to  it.  In  such  cases,  courts  of  equity  often  act  upon 
their  own  inherent  doctrine  of  discouraging  antiquated  claims, 
for  the  peace  of  society,  by  refusing  to  interfere  where  there  has 
been  gross  laches  in  prosecuting  the  right,  or  acquiescence  in  the 
assertion  of  an  adverse  right.3 

Society,  1  Ohio  St.  47S;  Oliver  v.  Piatt.  3  How.  (U.  S.)  333;  Badger  v.  Badger, 
2  Wall.  (U.  S.)  S7;  Gratz  v.  Prevost,  6  Wheat.  (U.  S.)  4S1 ;  Merriam  v.  Hassam, 
14  Allen  (Mass.)  516;  Atty.-Gen.  y.  Federal  St.  Meeting-House,  3  Gray  (Mass.) 
1,  Kane  v.  Bloodgood,  7  Johns.  Ch.  (M.  Y.)  go;  Wedderburn  v.  Wedderburn,  4 
Myl.  &  Cr.  41;   Bright  v.  Legerton,  2  De  G.  F.  &  J.  606. 

1  Story,  J.,  in  Baker  v.  Whiting,  3  SumnerjU.  S.)  466;   Edwands  v.  University, 

1  D.  &  B.  Eq.  (N.  C.)  325. 

It  is  true,  as  a  general  rule,  that  when  the  relation  of  trustee  and  cestui  que 
trust  is  uniformly  admitted  to  exist,  and  there  is  no  assertion  of  adverse  claim 
or  ownership  by  the  trustee,  lapse  of  time  can  constitute  no  bat  to  relief.  But 
when  the  trust  relation  is  repudiated,  and  time  and  long  acquiescence  have 
obscured  the  nature  and  character  of  the  trust,  or  the  acts  of  the  parties  or 
other  circumstances  give  rise  to  presumptions  unfavorable  to  its  continuance, 
in  all  such  cases  a  court  of  equity  will  refuse  relief  on  the  ground  of  lapse  of 
time,  and  its  inability  to  do  complete  justice.  Nettles  v.  Nettles,  57  Ala.  539; 
Philippi  v.  Philippi,  61  Ala.  41;  Lansdale  v.  Smith,  106  U.  S.  391;  Goodwyn  ». 
Baldwin,  59  Ala.  127;  Maury  v.  Mason,  8  Port.  (Ala.)  211 ;  Philippi  v.  Philippi, 
115  U.  S.  157.  If  twenty  years  are  allowed  to  elapse  from  the  time  from  which 
proceedings  could  have  been  instituted  for  the  settlement  of  a  trust  without  the 
commencement  of  such  proceedings,  and  there  has  been  no  recognition  or 
admission  within  that  period  of  the  trust  as  continuing  and  undischarged,  a 
presumption  of  settlement  arises  which  operates  as  a  positive  bar.  McCarty 
v.  McCarty,  74  Ala.  546;  Greenlees  v.  Greenlees,  62  id.  330;  Harrison  v.  Hefiin, 
54  id.  552;  Rhodes  v.  Turner,  21  id.  210;  Blackwell  v.  Blackwell,  33  id.  57; 
Worley  v.  High,  40  id.  171;  Ragland  v.  Morton,  41  id.  344;  and  this  may  be 
said  to  be  the  settled  law  of  equity  jurisprudence.     Cholmondeley  v.  Clinton, 

2  Jac,  &  Walk.  1,138.  Hovenden  v.  Annesley,  2  Sch.  &  Lef.  607;  Elmendorf  t\ 
Taylor,  10  Wheat.  (U.  S.)  152;  Wagner  v.  Baird,  7  How.  (U.  S.)  233;  Bowman 
v.  Wathen,  1  id.  1S9;   Kane  v.  Bloodgood,  7  Johns.  Ch.  (N.  Y.)  90. 

2"  Equitable  Actions,"  Chap.  VI. 

3  Wagner  v.  Baird,  7  How.  (U.  S.)  234;   Kennedy  v.  Georgia  State  Bank,  8  id. 


484  STATUTES   OF   LIMITATION.  [CHAP.  XVII. 

SEC.  214.  Stale  Trusts  not  favored  in  Equity.  —  Courts  of 
equity  do  not  apply  the  statute  to  matters  peculiaHy  and  exclu- 
sively within  their  own  jurisdiction,  and  for  this  reason  no  lapse 
of  time  will  preclude  a  court  of  equity  from  investigating  trans- 
actions and  accounts  between  parties  standing  in  the  relative 
situation  of  trustee  and  cestui  que  trust,  where  the  transactions 
between  them  are  not  closed,  and  the  delay  of  the  claim  is 
attributable  to  the  trustee  not  having  given  that  information 
to  his  cestui  que  trust  to  which  he  was  entitled,  and  accounted 
with  him  in  such  manner  as  he  ought  to  have  done,1  or 
where  the  circumstances  are  such  as  to  operate  as  a  reason- 
able excuse  for  the  delay;2  and  where  fraud  is  imputed  and 
proved,  the  length  of  time  during  which  the  fraud  has  been  con- 
cealed and  practiced  is  rather  an  aggravation  of  the  offence  than 

586;  Stearns  v.  Page,  7  id.  819;  Piatt  v.  Vattier,  9  Pet.  (U.  S.)  405;  Fenson  v. 
Sanger,  5  N.  Y.  Leg.  Obs.  43.  "  A  court  of  equity,"  says  Lord  Camden. 
"  which  is  never  active  in  relief  against  conscience  or  public  convenience,  has 
always  refused  its  aid  to  stale  demands,  where  the  party  has  slept  upon  his 
rights.  Nothing  can  call  forth  this  court  into  activity  but  good  conscience, 
good  faith,  and  reasonable  diligence.  Wheie  these  are  wanting,  the  court  is 
passive  and  does  nothing.  Laches  and  neglect  are  always  discountenanced, 
and  therefore  from  the  beginning  of  this  jurisdiction  there  was  always  a  limita- 
tion to  suits.  But  as  the  court  has  no  legislative  authority,  it  could  not  prop- 
erly define  the  time  of  bar  by  positive  rule;  it  was  governed  by  circumstances. 
But  as  often  as  Parliament  had  limited  the  time  of  action  and  remedies  to  a  cer- 
tain period  in  legal  proceedings,  the  Court  of  Chancery  adopted  that  rule,  and 
applied  it  to  similar  cases  in  equity;  for  when  the  legislature  had  fixed  the  time 
at  law,  it  would  have  been  preposterous  for  equity,  which  by  its  own  proper 
authority  always  maintained  a  limitation,  to  countenance  laches  beyond  the 
period  that  the  law  has  been  confined  to  by  Parliament,  and  therefore  in  all 
cases  where  the  legal  right  has  been  barred  by  Parliament,  the  equitable  right 
to  the  same  thing  has  been  concluded  by  the  same  bar."  Smith  v.  Clay,  3  Bro. 
C.  C.  640,  note.  In  Mellish's  Estate,  1  Pars.  (Penn.)  482,  the  court  refused  to 
compel  a  trustee  to  account  after  an  unexplained  delay  of  thirty  years. 

1  Wedderburn  v.  Wedderburn,  2  Keen,  749;  Sheldon  v.  Weldman,  1  Ch.  Cas. 
26;  Phillipo  v.  Munnings,  2  Myl.  &  Cr.  315;  Hollis's  Case,  2  Vent.  345;  Smith 
v.  Pocock,  23  L.  J.  Ch.  596.  Ignorance  of  one's  rights,  at  law,  does  not  pre- 
vent the  operation  of  the  statute  of  limitations.  Campbell  v.  Long,  20  Iowa, 
382;  Bossard  v.  White,  9  Rich.  (S.  C.)  Eq.  483;  Martin  v.  Bank,  31  Ala.  115; 
Davis  V.  Cotton,  2  Jones  (N.  C.)  Eq.  430;  Abell  v.  Harris,  11  G.  &  J.  (Md.)  367. 
This  is  so  even  though  the  action  is  founded  on  a  breach  of  trust.  Cole  v.  Mc- 
Glathry,  <>  Me.  131.  But  in  equity  it  would  operate  as  an  excuse  for  delay, 
especially  if  the  trustee  had  failed  to  inform  the  cestui  que  trust  of  the  facts, 
l'ni'h  v.  Bel],  1  J.  J.  Marsh.  (Ky.)  399;   Halsey  v.  Tate,  52  Penn.  St.  311. 

"  I'n-vost  v.  Gratz,  6  Wheat.  (U.  S.)48l. 


§215.]  TRUSTS   AND   TRUSTEES.  485 

a  circumstance  to  excuse  delay.1  In  a  Pennsylvania  case,2  where 
after  a  delay  of  seventy  years,  upon  a  bill  brought  for  an  account- 
ing for  certain  stocks  which  had  been  sold  in  trust  for  a  person 
who  was  then  dead,  who  knew  the  facts,  but  never  set  up  any 
claim  under  the  trust,  the  court  refused  to  interfere.3  Equity 
will  decline  to  interfere  to  relieve  against  a  trustee  after  a  long 
lapse  of  time  and  the  character  of  the  trust  has  become  obscure, 
or  the  acts  of  the  parties  or  other  circumstances  raise  a  presump- 
tion against  it.4  So,  also,  equity  will  refuse  to  interfere  where 
there  has  been  a  clear  breach  of  trust,  and  the  cestui  que  trust  has 
for  a  long  time  acquiesced  in  the  misconduct  of  the  trustee,  with 
full  knowledge  of  the  breach.5 

SEC.  215.  Constructive  or  Resulting  Trusts.  —  The  rule  relative 
to  express  trusts  has  no  application  to  that  species  of  trusts  which 
arise  from  implication  or  operation  of  law,  and  consequently  are 
the  ground  of  an  action  at  law.6     One  who  is  not  actually  a  trus- 

1  Bank  of  the  United  States  v.  Beverley,  1  How.  (U  S.)  134;  Michaud  v.  Girod, 
4  id.  503. 

2  Halsey  v.  Tate,  52  Penn.  St.  311. 

3  See  Robertson  v.  Maclin,  3  Hayvv.  (Tenn.)  76,  where  great  delay  in  seeking 
relief  under  a  trust  was  held  to  have  great  weight  against  the  application. 
Lapse  of  time  without  any  claim  or  admission  of  an  existing  trust,  coupled  with 
circumstances  tending  1o  show  that  the  trust  has  been  executed,  raises  a  pre- 
sumption of  its  execution,  and,  in  the  case  of  a  guardian,  may  authorize  the 
court  to  require  a  less  specific  statement  of  the  items  of  the  account,  and  raise 
a  presumption  of  payment  to  and  for  the  ward  to  the  amount.  Gregg  v. 
Gregg,  15  N.  H.  190.  Lapse  of  time  does  not  operate  as  a  bar  of  express  trusts, 
especially  where  the  trustee  and  those  claiming  under  him  have  not  asserted 
an  adverse  claim  for  more  than  two  years,  and  the  rights  of  the  cestui  que  trust 
will  not  be  barred  though  he  has  neglected  to  claim  the  benefit  of  the  trust  for 
nearly  forty  years  before.  In  order  that  lapse  of  time  shall  operate  to  raise  a 
presumptive  bar,  the  trustee  must  have  so  conducted  with  reference  to  the 
estate,  as  to  lead  to  the  conclusion  that  he  claimed  and  regarded  it  as  his  own. 
If  he  holds  it  in  recognition  of  the  trust,  no  length  of  time  will  bar  the  cestui. 
Pinson  v.  Ivey,  1  Yerg.  (Tenn.)  296. 

4  Taylor  v.  Blair,  14  Mo.  437;  Whedbee  v.  Whedbee,  5  Jones  (N.  C.)  Eq.  392. 

5  Broadhurst  v.  Balgany,  1  Y.  &  C.  28. 

'Wisner  v  Barnet,  4  Wash.  (U.  S.  C.  C.)  631;  Hayman  v.  Keally,  3  Cranch 
(U.  S.  C.  C.)  325;  Boone  v.  Chiles,  10  Pet.  (U.  S.)  177;  Lexington  v.  Ohio  R.  R. 
Co..  7  B.  Mon.  (Ky.)  556;  Walker  v.  Walker,  16  S.  &  R.  (Penn.)  379;  Smith  v. 
Calloway,  7  Blackf.  (Ind.)  86;  Singleton  v.  Moore,  Rice  (S.  C.)  Eq.  no;  Ram- 
say v.  Deas,  2  Desaus.  (S.  C.)  233;  Mussey  v.  Mussey,  2  Hill  (S.  C.)  Ch.  496; 
Spotswood  v.  Dandridge,  4  H.  &  M.  (Va.)  139;  Stephen  v.  Yandle,  3  Hayvv.  (N. 
C.)  231;  Talbot  v.  Todd,  5  Dana  (Ky.)  199;  Cook  v.  Williams,  2  N.  J.  Eq.  209; 


486  STATUTES    OF    LIMITATION.  [CHAP.   XVII. 

tee,  but  upon  whom  that  character  is  forced  by  a  court  of  equity, 
only  for  tne  purpose  of  a  remedy,  may  avail  himself  of  the  stat- 
ute.1 (a)  Within  what  time  a  constructive  trust  will  be  barred  must 
depend  on  the  circumstances  of  each  case.  There  are  few  cases 
where  a  constructive  trust  can  be  enforced  against  a  person  who  has 
held  peaceable  possession  for  twenty  years,  claiming  in  his  own 
right,  but  whose  acts  have  made  him  a  trustee  by  implication.2 
And  the  same  rule  prevails  where  a  person  is  converted  into  a  trus- 
tee on  the  ground  of  fraud,3  and  the  statute  begins  to  run  from  the 
discovery  of  the  fraud.4 

Sec.  2  i  6.  Mistake  of  Trustee  in  Possession.  —  We  have  already 
seen  that  the  possession  of  the  trustee  is  treated  as  the  possession 
of  the  cestui  que  trust,  consequently  a  mistake  by  a  trustee  in  the 
possession  of  land,  who  treats  a  wrong  person  as  equitably  entitled 
will  not  affect  the  rights  of  the  real  claimant;5  but  when  the  trust 
is  merely  implied,  the  rule  is  otherwise.  Thus,  if  a  person 
receives   money   or   goods    from    a    person    believing  that  they 

Rush  v.  Barr,  I  Watts  (Penn.)  no;  Paige  v.  Hughes,  2  B.  Mon.  (Kv.)  138; 
Kane  v.  Bloodgood.  supra;  Sheppards  v.  Turpin,  3  Gratt.  (Va.)  373;  Wagstaff 
v.  Smith,  4  Ired.  (N.  C.)  Eq.  1;  Green  v.  Johnson,  3  G.  &  J.  (Ind.)  389;  Hawley 
v.  Cramer,  4  Cot.  (N.  Y.)  717;  Wylly  v.  Collins,  9  Ga.  223;  Ball  v.  Lawson,  4 
W.  &  S.  (Penn.)  557;  Finney  v.  Cochran,  1  id.  112;  Jchnson  v.  Smith,  27  Mo. 
591;   Alston  v.  Alston,  84  Ala.  15;   Buchan  v.  Janes,  1  Speers  (S.  C.)  Eq.  375. 

1  Elmendorf  v.  Taylor,  10  Wheat.  (U.  S.)  152.  Thus,  where  a  bill  in  chancery 
was  filed  by  persons  residing  in  Canada,  claiming  title  to  property  in  Detroit, 
which  had  been  in  the  possession  of  the  defendants  and  those  claiming  under 
them  since  1793,  without,  as  far  as  appeared,  any  right  being  set  up  by  the 
complainants,  or  by  those  claiming  under  them,  to  the  title  or  the  possession 
of  the  premises,  until  the  filing  of  the  bill,  or  any  claim  to  the  rents  or  profits, 
or  to  an  account  as  tenants  in  common,  or  for  partition,  or  to  be  admitted  to 
the  enjoyment  ot  any  rights  as  co-heirs,  it  was  held  that  the  case  rested  upon 
the  enforcement  of  an  implied  trust  and  that  a  court  of  equity  must  follow  the 
courts  of  law  in  applying  the  statute  of  limitations.  Beaubien  v.  Beaubien,  23 
How.  (U.  S.)  TQO. 

'  Michael  v.  Giroud,  4  How.  ((J.  S.)  503. 

3  Wheeler  v.  Piper,  3  Jones  (N.  C.)  Eq.  249. 

4  Moore  v.  Greene,  19  How.  (U.  S.)  69. 
6  Lester  v.  Pick  ford,  34  Beav.  576. 

(a)  One  who  is  merely  a  constructive  beneficiary's  rights  being  not  sufficient 
trustee  may  avail  of  the  statute,  though  for  this  purpose.  Hecht  v.  Slaney,  72 
he  has  not  repudiated  the  trust.  In  Cal.  363;  Nougues  7>.  Newlands,  118 
California,  such  a  trustee  do's  not  be-  Cal.  102;  Stillwater  &  St.  Paul  R.  Co. 
come  an  express  trustee  until  he  signs  v.  Stillwater,  66  Minn.  176;  2  Story  Eq. 
writing  amounting  to  a  declara-  Jur.  (13th  ed.),  §  1520a;  Potter  v.  Doug- 
lion  of  trust,  his  oral  recognition  of  the  lass,  S3  Iowa,  190;  nipra,  §  58,  notes. 


§  217-219.]  TRUSTS   AND    TRUSTEES.  487 

belonged  to  him,  when  in  fact  they  belonged  to  a  stranger,  an 
implied  trust  is  raised,  and  the  stranger  is  entitled  to  sue  at  once, 
and  he  is  barred  by  the  statute  unless  suit  is  brought  in  time.1 

Sec.  217.  Funds  of  Societies  vested  in  Trustees.  —  Where  the 
funds  of  an  association  in  the  nature  of  a  benefit  society  were 
vested  in  trustees,  it  was  held  that  neither  the  association  nor  the 
trustees  were  trustees  for  the  purposes  of  the  statute ;  and  a  claim 
to  a  pension  due  to  the.widow  of  a  member  of  such  a  society  was 
held  barred  as  to  the  chief  part  thereof  after  the  lapse  of  more 
than  twenty  years;  in  the  particular  case,  the  claim  being  to  a 
sum  of  money  payable  de  anno  in  annum,  the  plaintiff  was  allowed 
so  much  thereof  as  had  become  due  within  six  years  before  filing 
the  bill,  with  interest  from  the  filing  of  the  bill.2  Persons,  how- 
ever, appointed  trustees  of  the  assets  of  a  certain  benefit  society, 
called  the  Rational  Society,  which  was  insolvent,  were  considered 
to  be  trustees  for  the  creditors  within  the  statute.  There  is  no 
fiduciary  relation  between  a  mutual  assurance  society  or  its  trus- 
tees and  a  policy-holder  or  grantee  of  an  annuity.3 

Sec.  218.  The  Liability  of  Trustee  for  Breach  of  Trust  creates 
Trust  Debt.  —  The  liability  of  a  trustee  for  a  breach  of  trust 
creates  only  a  simple  debt,  except  when  the  trust  is  created  by 
specialty-  But  when  the  trust  is  created  by  specialty,  it  is  a  trust 
debt  to  which  neither  the  trustee  nor  his  executor  can  plead  the 
statute.4  In  several  Irish  cases5  it  has  been  held  that,  while  the 
statute  will  not  run  in  favor  of  the  trustee  in  his  lifetime,  it  will 
run  in  favor  of  his  executor;  but  according  to  the  doctrine  of  the 
English  case6  cited,  the  trustee  and  his  executor  are  put  upon  the 
same  footing  as  regards  the  statute  in  cases  of  breach  of  trust, 
and  this  is  in  accordance  with  the  dicta  of  several  previous  cases.7  (a) 

1  Buchan  v.  James,  1  Speers  (S.  C.)  Eq.  375. 
'  Edwards  v.  Warden,  9  Ch.  495. 

3  Pare  v.  Clegg,  29  Beav.  589;   Banning  on  Lim.  198. 

4  Brettlebank  v.  Goodwin,  L.  R.  5  Eq.  545. 

6  Dunne  v.  Doran,  13  Ir.  Eq.  Rep.  545;  Adair  v.  Shaw,  1  Sch.  &  Lef.  243; 
Brinton  v.  Hutchinson,  3  Ir.  Ch.  Rep.  361. 

•  Brettlebank  v.  Goodwin,  supra. 

'  Baker  v.  Martin,  5  Sim.  380;  Obee  v.  Bishop,  1  D.  F.  &  J.  137;  Story  v. 
Gape,  2  Jur.  N.  S.  706. 

(a)  When  the  English  Trustee  Act,  a  trustee,  founded  on  a  breach  of  trust, 
188S,  was  passed,  noexisting  statute  of  to  recover  money;  that  act  limited  the 
limitations  applied  to  an  action  against     time   for  such   an   action   to  six   years 


488  STATUTES   OF    LIMITATION.  [CHAP.   XVII. 

SEC.  219.  Vendor  and  Vendee  of  Land.  —  Upon  the  execution 
of  a  contract  to  convey,  the  vendee  in  equity  becomes  the  owner 
of  the  land,  subject,  however,  to  have  his  title  defeated  if  he  fails 
to  perform  his  agreement.  But  upon  full  performance  by  him, 
equity  treats  him  as  absolute  owner  of  an  indefeasible  estate,  and 
the  vendor  is  a  naked  trustee,  having  no  estate  and  charged  with 
the  simple  duty  to  convey  to  the  vendee  upon  demand,  and  the 
statute  does  not  begin  to  run  upon  his  right  to  a  specific  per- 
formance of  the  contract  by  a  conveyance  of  the  land  by  the 
vendor,  until  the  vendor  has  given  him  notice  of  his  intention 
not  to  convey,  or  done  some  other  unequivocal  act  indicating 
that  he  claims  and  holds  the  land  adversely.1  Equity  regards  the 
vendee  as  owner  upon  the  principle  that  it  regards  that  as  done 
which  ought  to  be  done,  and  will  compel  the  conveyance  of  the 
legal  title  to  him,  because  at  law  his  equitable  title  is  not  recog- 
nized, and  so  long  as  the  vendee  is  in  possession  under  his  con- 
tract, the  statute  cannot  run  upon  his  right  to  a  conveyance.2 

The  trust  which  arises  upon  the  sale  of  land,  where  the  purchase 
money  has  been  paid,  is  a  resulting  trust.  It  is  excepted  out  of 
the  statute  of  frauds,  and  in  cases  which  admit  of  doubt,  parol 
evidence  is  admissible  to  rebut  the  presumption  that  a  trust  was 
intended,  as  in  the  case  where  lands  are  purchased  in  the  name 
of  one,  and  the  purchase  money  paid  by  another.  Although 
from  the  circumstances  a  trust  would  be  implied,  it  may  be  shown 
that  it  was  intended  as  a  loan  or  an  advance.  Like  express  trusts, 
these  trusts  arise  from  a  confidence  reposed  in  the  trustee,  and 
are  in  accordance  with  the  intention  of  the  parties.  In  this 
respect  they  differ  widely  from  those  constructive  trusts  which 
are  established  by  evidence  and  forced  upon  the  conscience  of 
the  trustee  against  his  will,  and  generally  to  prevent  the  consum- 
mation of  a  fraud.      In  the  latter  case  the  relation  of  the  parties 

1  Love  v.  Watkins,  40  Cal.  547,  6  Am.  Rep.  624. 

'Temple,  J.,  in  Bodley  v.  Ferguson,  30  Cal.  511;  Morrison  v.  Wilson,  13  id. 
4 ',-.  Richardson  v.  Kuhn,  6  Watts  (Penn.)  299;  Martin  v.  Willink,  7  S.  &  R. 
( Penn.)  297. 

from  the  time  when  the  loss  occasioned  part  of   the  cestui  que  trust  to  allow  all 

by  the    breach    of   trust  occurred.     See  the  instruments  of  title,  including;  title 

///    rt   Swain,    [1891]    3    Ch.    233.     See  deeds    and     negotiable    certificates    of 

al30    on    that    Act,    Thorne    v.    Heard,  stock,  to   remain    in    the  trustee's  cus- 

|i   .,-  1  A.  '  ,495;   Leahy  v.  De  Moleyns,  tody.      Carritt    v.    Real    and    Personal 

[  1    )6]  I  I.  R.  206  Advance  Co.,  42  Ch.  D.  263,  270. 
It  is  not    negligence  or  laches  on  the 


§  2I9-]  TRUSTS   AND   TRUSTEES.  489 

is  hostile  from  the  beginning,  and  the  possession  of  the  trustee 
adverse;  and  there  being  no  actual  confidence  reposed  in  the 
trustee,  there  can  be  no  pretense  that,  according  to  the  intent 
and  contract  of  the  parties,  the  relation  was  to  be  a  continuous 
one.  As  to  the  former,  the  relation  being  friendly,  and  a  real 
confidence  reposed  in  the  trustee,  which  may  be  intended  as  a 
continuous  one,  so  long  as  the  relation  is  recognized  and  acted 
upon  by  the  parties,  the  same  reason  that  induced  courts  of 
equity  to  recognize  the  trust  at  all  would  compel  them  to  recog- 
nize its  continued  existence.  The  purpose  of  the  trust  may  have 
been  that  the  trustee  should  continue  to  hold  the  title,  and  the 
same  confidence  that  led  to  the  trust  in  the  beginning  would  pre- 
vent the  beneficiary  from  compelling  a  conveyance  of  the  legal 
estate  to  him.  The  only  respect  in  which  this  trust  differs  from 
an  express  trust  is  as  to  the  mode  in  which  it  is  established  or 
proven.  That  is,  there  it  no  declaration  or  agreement  by  which 
the  terms  are  stated  upon  which  the  trustee  is  to  hold  the  trust 
property.  When  established,  they  are  recognized  and  enforced 
precisely  as  express  trusts  are  enforced;  the  only  difference  being 
that  perhaps  a  different  presumption  might  arise  from  the  pos- 
session of  the  trustee.  The  trust,  though  implied  from  the  evi- 
dence, is  in  reality  an  express  trust,  and  will  be  treated  as  such 
by  the  court.  That  is,  implied  trusts  are  considered  as  really  the 
expression  of  the  donor  or  grantor  as  those  which  are  denominated 
express  trusts;  the  difference  is  only  in  the  form  of  language  by 
which  the  trust  is  expressed.  They  derive  their  authority  from 
the  will  of  the  donor,  grantor,  etc.,  as  gathered  from  his  actions 
or  expressions.1 

1  Tiffany  &  Bullard  on  Trusts,  19.  In  Bartlett  v.  Judd,  23  Barb.  (N.  Y.)  263, 
which  was  an  action  to  reform  a  deed,  the  vendee  having  been  in  possession, 
and  more  than  ten  years  having  elapsed,  the  court  held  that  he  was  not  barred, 
notwithstanding  the  provision  of  the  statute  that  "  bills  for  relief  shall  be  filed 
within  ten  years  after  the  cause  of  action  accrued,  and  not  after."  It  was  held 
that  when  the  equitable  owner  of  land  is  in  possession,  and  is  afterwards  evicted 
by  the  owner  of  the  legal  title,  his  cause  of  action  to  establish  his  equitable 
right  does  not  arise  until  after  eviction.  See  also  Varick  v.  Edwards,  11  Paige 
(N.  Y.)  290.  In  Harris  v.  King,  16  Ark.  122,  the  court  even  held  that  if  the 
vendor,  having  received  the  full  purchase  money,  executes  a  bond  to  convey, 
and  then  remains  in  possession,  he  will  be  presumed  to  hold  as  trustee  or  agenl, 
and  the  statute  does  not  run  in  his  favor  against  the  vendee.  This  is  held  upon 
the  doctrine  of  trusts,  it  being  held  that  an  equitable  title  to  real  estate  can  be 
lost  only  in  the  same  manner  as   a  legal    title,   by   adverse   possession.     The 


490  STATUTES   OF   LIMITATION.  [CHAP.   XVII. 

The  conveyance  from  the  trustee  to  the  cestui  que  trust  in  such 
cases  is  but  the  execution  of  the  trust;  the  right  to  obtain  the 
legal  title  is  but  an  incident  to  the  estate  of  the  cestui  que  trust. 
So  long,  therefore,  as  the  estate  exists,  so  long  will  the  right  to 
acquire  the  legal  title  subsist.  It  is  like  the  right  of  a  tenant  in 
common  to  compel  a  partition,  and  is  not  a  cause  of  action  which 
accrues  in  the  sense  of  the  statute  of  limitations,  and  which  may 
be  lost  by  the  lapse  of  time.  The  trustee  and  cestui  que  trust 
have  the  same  title,  and  do  not  hold  adversely  so  long  as  the 
rights  of  neither  are  denied.  If  A.  purchases  land  with  his  own 
money,  but,  for  proper  reasons,  the  deed  is  taken  in  the  name  of 
B.  with  his  consent,  and  A.  goes  into  possession  and  continues  to 
use  the  property  as  his  own,  this  would  be  an  implied  trust ;  but 
no  one  would  think  the  statute  of  limitations  would  deprive  A.  of 
his  estate  for  a  failure  to  obtain  the  legal  title  within  four  years. 
He  is  guilty  of  no  laches  in  asserting  his  rights.  His  possession 
is  the  most  effective  assertion  of  them. 

In  Texas,  this  question  has  been  considerably  discussed,  and 
the  decisions  are  in  accordance  with  this  view.  The  trust  created 
is  held  to  be  a  continuing  trust;  that  the  vendee  is  clothed  with 
the  equitable  title,  and  the  statute  does  not  run  against  his  right 
to  enforce  a  specific  performance,  so  long  as  he  remains  in  pos- 
session with  the  acquiescence  of  the  vendor.1 

SEC.  220.  Purchaser  of  Property  for  Benefit  of  another.  —  It  is 
a  well-settled  rule  that  where  one  person  purchases  lands  or  other 
property   for  another,  and   the  purchase  money  is  paid   by   the 

same  was  held  in  Scarlett  v.  Hunter,  3  Jones  (N.  C.)  Eq.  S4.  See  also  Boone 
v.  Chiles,  10  Pet.  (U.  S.)  177;  Ahl  v.  Johnson,  20  How.  (U.  S.)  511;  Barlow  v. 
Whitelock,  4  Munf.  (Va  )  180;  Crofton  v.  Ormsby,  2  Sch.  &  Lef.  583,  603; 
Burke  v.  Length,  3  J.  &  L.  193;  Longworth  v.  Taylor,  1  McLean  (U.  S.  C.  C.) 
395;  Miller  v.  Bear,  3  Paige,  (N.  Y.)  Ch.  466;  Waters  v.  Travis,  9  Johns.  (N.  Y.) 
450;  New  Barbadoes  Toll  Birdge  Co.  v.  Vreeland,  4  N.  J.  Eq.  157.  In  Coulson 
v.  Walton,  9  Pet.  (U.  S.)  62,  a  special  performance  was  decreed  forty-four  years 
after  an  action  might  have  been  brought  for  that  purpose  by  the  vendee.  It 
was  held  that  the  statute  would  be  good  in  all  cases  in  equity  by  analogy,  when 
at  law  it  would  have  been  held  good  under  similar  circumstances;  that  a  legal 
till-  could  only  be  barred  by  adverse  possession,  and,  therefore,  an  equitable 
title  could  only  be  barred  in  the  same  way. 

1  [lemming  v.  Zimmcrschitte,  4  Tex.  159;  Mitchell  v.  Shepperd,  13  id.  484; 
Holman  V.  Criswell,  15  id.  394;  Vardeman  v.  Lawson,  17  id.  10;  Newson  v. 
Davis    20  id.  419. 


§  220.]  TRUSTS   AND   TRUSTEES.  49 1 

beneficiary  or  out  of  his  funds,  although  the  title  is  taken  in  the 
name  of  the  person  making  the  purchase,  a  trust  results,  and 
the  purchaser  holds  the  land  or  other  property  in  trust  for  the 
person  whose  money  paid  for  the  same,  whether  the  trust  was 
created  by  writing,  or  vests  merely  in  parol.1  If  a  part  only  of 
the  purchase  money  is  paid  by  the  person  claiming  the  benefit 
of  the  trust,  the  resulting  trust  is  limited  to  the  amount  so  paid, 
even  though  he  subsequently  pays  the  balance,  or  offers  to  pay 
it,2  unless  a  note  or  other  obligation  is  given  for  the  balance;3 
and  if  the  consideration  is  paid  by  two  or  more  persons  jointly, 
a  trust  results  in  favor  of  each,  to  the  extent  of  the  consideration 
furnished  by  each.4  The  rule  is  well  settled  that  the  trust  must 
result  at  the  time  of  the  execution  of  the  deed,  and  cannot  be 
raised  by  matters  subsequent  thereto,5  and  it  is  under  this  latter 
rule  that  the  trust  is  restricted  to  the  amount  of  the  purchase 
money  actually  furnished  by  the  person  claiming  the  benefit  of 
the  purchase  at  the  time  of  or  before  the  execution  of  the  con- 
veyance, as  the  trust  must  result  at  the  very  instant  the  deed  is 
executed,  or  it  cannot  result  at  all.6 

1  Havens  v.  Bliss,  26  N.  J.  Eq.  363;  Cutler  v.  Tuttle,  19  id.  549;  Stratton  v. 
Dialogue,  16  id.  70. 

2  Baldwin  v.  Campbell,  8  N.  J.  Eq.  891. 

3Depeyster  v.  Gould,  3  N.  J.  Eq.  474;  Baldwin  v.  Campbell,  supra. 

4  Cutler  v.  Tuttle,  supra. 

5Tunnard  v.  Littell,  23  N.  J.  Eq.  264. 

*  Davis  v.  Wetheiell,  11  Allen  (Mass.)  19;  Barnard  v.  Jewett,  97  Mass.  87. 


492  STATUTES   OF   LIMITATION.  [CHAP.    XVIII. 


CHAPTER  XVIII. 

Mortgagor  and  Mortgagee. 

Sec.  221.   Relation  of,  to  the  Property.     Sec.  229.   Presumption    of     Payment. 

222.  Distinction  between  Note  or  Effect  of   Part  Payment. 

Bond,  and    the    Mortgage  230.   Effect    of   Acknowledgment 
given   to    secure    its    Pay-  or  New  Promise   upon  the 

ment.     Periods  of  Limita-  Mortgage, 

tion  as    to,  in  the  several  231.  Effect  of  Fraud  on    Part   of 
States.  Mortgagee. 

223.  Statutory  Provisions  relative  232.   Distinction     between     Equi- 

to  Mortgages.  table    Lien    or    Purchase- 

224.  When  Statute  begins  to  run  money  and  Mortgage. 

in  Favor  of  or  against  the  233.   Distinction  between  a  Pledge 

Mortgagor.  and   a   Mortgage.      Differ- 

225.  Right  of  Redemption  barred,  ence  in  Application  of  Stat- 

when.  ute    to    the    one    and    the 

226.  When  Mortgagor  is  in   Pos-  other. 

session  of   a    Part   of    the  234.   Discharge  of  Mortgage  Debt, 

Premises.  Effect  of. 

227.  Liability    of    Mortgagee    in  235.   Mortgagee  in  Possession. 

Possession.  236.   Absolute    Conveyances,   but 

228.  Welsh  Mortgages.  in  fact  Mortgages. 

SEC.  221.  Relation  of,  to  the  Property.  — Strictly  speaking,  by 
a  mortgage  conveyance  the  mortgagee  is  invested  with  the  legal 
title  to  the  estate,  while  the  mortgagor  retains  only  the  equitable 
title,  which  gives  to  him  the  right  to  reinvest  himself  with  the 
le^al  title  upon  performance  of  the  conditions  imposed  by  the 
conveyance.  In  other  words,  the  mortgagee  takes  the  legal  title 
subject  to  a  condition,  unless,  as  is  the  case  in  some  of  the  States, 
the  statute  regulates  the  character  of  the  relative  estates. (a) 

There  is  much  confusion  in  the  cases  as  to  the  precise  relation 
of  a  mortgagor  and  mortgagee  to  the  estate;1  but  this  results 

'A  mortgagor,  says  Parke,  B.,  "can  be  described  only  by  saying  he  is  a 
mortgagor."     Litchfield  v.  Ready.  20  L.  J.  Exch.  51. 

(a)  In  some  of   the  Western   States,  in    Kentucky,    there   is   no   statute   of 

when   the  statute  bars  the  debt,  it  dis-  limitations  as    to   liens,  then   if   the  in- 

charges  the  mortgage.     See  e.g.  Leeds  strument    shows    no   different    intent. 

Lumber  Co,  v.  Haworth,  98  Iowa,  463;  they  are  only  valid  and  enforceable  so 

Cook    v.    Prindle,  97  Iowa,  464.     But  long  as  the  debt  they  secure  is  a  valid 

this  is  not   the  view  taken   in   most  of  and  enforceable  obligation.     Craddock 

Ihe    Eastern    States,  or  probably  in  a  v.   Lee  (Ky.)  61   S.  W.   22,   24.     As  to 

majority  of  the  States.     See  2  Jones  on  deeds  of  trust,  see  Fuller  v.  Oneal,  82 

Mortgages (5th  ed.),  §  1203  et  seq.;  Mc-  Texas,    417;     McGovney    v.    Gwillim, 

Kisson   r.    Davenport  (Mich.)  10  L.  R.  (Col.    App.)   65    Pac.    346;    Angell    00 

A.  507,  and  note;   Kulp  v.  Kulp  (Kan-  Limitations  (6th  ed.),  §  468. 
sas)  21    id.   550   and  note.     Where,  as 


§221.]  MORTGAGOR   AND    MORTGAGEE.  493 

mainly  from  a  difference  in  the  form  of  the  mortgages  under 
which  the  dec's;ons  have  arisen,  and  in  some  instances  from  the 
peculiar  provisions  of  statutes  relating  to  the  matter.1  The  mort- 
gagor has  sometimes  been  treated  as  a  tenant  at  will  to  the  mort- 
gagee, or  as  a  mere  tenant  at  sufferance;  but  at  the  present  day, 
until  condition  broken  and  foreclosure,  a  mortgagor  is  treated, 
both  at  law  and  in  equity,  as  the  legal  owner  of  the  estate,  the 
mortgage  being  only  a  security,  and  the  mortgagee  having  only 
a  lien  upon  the  land,  as  a  security  for  his  debt.2 

But  in  some  of  the  States  it  is  held  that  a  mortgage  in  fee 
passes  both  the  legal  and  equitable  estate,  defeasible  by  the  per- 
formance of  the  condition  according  to  its  legal  effect.3  The 
preponderance  of  authority,  however,  relative  to  ordinary  mort- 
gages, is  in  favor  of  the  doctrine  that  the  title  remains  in  the 
mortgagor,  at  least  until  after  condition  broken  (and  in  many  of 
the  States  until  after  foreclosure);4  and  in   England,  while  the 

1  "  A  mortgagor  is  not  properly  tenant  at  will  to  the  mortgagee,  for  he  is 
not  to  pay  him  rent.  He  is  only  quodam  moJo.  Nothing  is  more  apt  to  con. 
found  than  a  simile.  When  the  court  or  counsel  call  a  mortgagor  a  tenant  at 
will,  it  is  barely  a  comparison.  He  is  like  a  tenant  at  will."  Moss  v.  Galli- 
more.  Doug.  279. 

2  Elfe  v.  Cole,  26  Ga.  197;  Casborne  v.  Scarfe,  1  Atk.  603;  Jackson  v.  Lodge, 
36  Cal.  28;  Thayer  v.  Cramer,  1  McCord  (S.  C.)  Ch.  395;  McMillan  v.  Richards 
9  Cal.  365;  United  States  7/.  Athens  Armory,  35  Ga.  344;  Fay  v.  Cheney,  14 
Pick.  (Mass.)  399;  Caruthers  v.  Humphrey,  12  Mich.  270;  Bryan  v.  Butts,  27 
Barb.  (N.  Y.)  503;  Hall  v.  Savill,  3  Iowa,  37.  But  in  some  of  the  States  the 
legal  title  is  held  to  pass  for  some  purposes.  Thus,  in  Glass  v.  Ellison,  9  N. 
H.  69,  it  was  held  that,  for  the  protection  of  the  interests  of  the  morlgagee,  and 
in  order  to  give  him  the  full  benefits  of  his  security,  the  legal  estate  passes, 
but  that  for  other  purposes  the  mortgage  is  in  general  held  to  operate  only  as  a 
mere  security  for  the  debt.  See  also,  to  same  effect,  Clark  v.  Reyburn,  1 
Kan.  281.  In  many  of  the  States,  as  between  the  mortgagor  and  mortgagee, 
it  is  held  that  the  title  passes,  but  not  as  to  third  persons.  Terry  v.  Rosell, 
32  Ark.  478. 

3  Blaney  v.  Bearce,  2  Me.  132;  Briggs  v.  Fish,  2  D.  Chip.  (Vt.)  100;  Carter  v. 
Taylor,  3  Head  (Tenn.)  30;  Erskine  v.  Townsend,  2  Mas?.  495;  Wood's  Land- 
lord &  Tenant,  183  et  seq. 

*  Whitmore  v.  Shiverick,  3  Nev.  2S8;  Jackson  v.  Lodge,  36  Cal.  28;  McMillan 
v.  Richards,  9  id.  365;  Goodenow  v.  Ewer,  16  id.  461;  Boggs  v.  Hargrave,  id. 
559;  Fogarty  n.  Sawyer,  17  id.  589;  Dutton  v.  Warschauer,  21  id.  609;  Blud- 
worth  v.  Lake,  33  id.  265;  Davis  v.  Anderson,  1  Ga  176;  Ragland  v.  Justices, 
etc.,  10  id.  65;  Elfe  Ass'n  v.  Cole,  26  id.  197;  United  States  v.  Athens  Arm6ry. 
35  id.  344;  Seals  v.  Cashin,  2  Ga.  Dec.  76;  Hall  v.  Savill,  3  G.  Greene  (Iowa) 
37;  Chick  v.  Willetts,  2  Kan.  384:  Caruthers  v.  Humphrey,  12  Mich.  270; 
Brvan  v.  Butts,  27  Barb.  (N.  YO503;  Thayer^.  Cramer,  1  McCord  (S.  C.)  Ch.  395. 


494  STATUTES    OF   LIMITATION.  [CHAP.    XVIII. 

mortgagor  is  in  possession,  or  in  receipt  of  the  rents  and  profits,. 
he  is  treated  as  a  freeholder,  and  as  such  is  entitled  to  vote  in 
the  election  of  members  of  Parliament,1  and  is  entitled  to  retain 
possession  until  the  mortgagee  enters  or  brings  ejectment,2  and  is 
not  liable  to  the  mortgagee  for  the  rents  or  profits  of  the  premises.3. 
The  right  of  the  mortgagor  to  retain  possession  of  the  premises, 
and  consequently  his  right  to  lease  the  same  after  mortgage,  is 
generally  upheld,  but  must  depend  largely  upon  the  language 
of  the  mortgage,  and  upon  the  statutes  relating  thereto  in  the 
several  States,  although  the  instances  are  very  rare  where  a  mort- 
gagee takes  possession  before  condition  broken,  or  even  before 

In  Alabama,  a  mortgage  is  regarded  as  possessing  a  dual  nature,  bearing  one 
character  in  a  court  of  law  and  another  in  a  court  of  equity,  but  ihe  legal  estate 
is  treated  as  remaining  in  the  mortgagor  until  condition  broken,  when  it  at 
once  vests  in  the  mortgagee,  leaving  only  an  equity  of  redemption  in  the  mort- 
gagor.    Welsh  v.  Phillips,  54  Ala.  309. 

In  Arkansas,  the  legal  estate,  as  between  the  mortgagor  and  mortgagee,  is 
treated  as  being  in  the  latter,  but  as  to  third  persons  it  is  in  the  mortgagor. 
Terry  v.  Rosell,  32  Ark.  47s;  Collins  v.  Torry,  7  Johns.  (N.  Y.)  278;  Blanchard 
v.  Brooks,  12  Pick.  (Mass.)  47.  In  Kansas,  Life  Association  v.  Cook,  20  Kan. 
19;  Michigan,  Wagar  v.  Stone,  36  Mich.  364;  Nebraska,  Harley  v.  Estes,  6 
Neb.  386;  California,  Jackson  v.  Lodge,  supra;  Georgia,  Kayland  v.  Justices, 
10  Ga.  65;  Nevada,  VVhitmore  v.  Shiverick,  3  Nev.  28S;  and,  indeed,  in  most 
of  the  States,  a  mortgage  is  held  to  be  a  mere  security,  vesting  no  estate  in  the 
mortgagee  until  after  foreclosure,  Myers  v.  White,  1  Rawle  (Penn.)  353;  State  v. 
Laval,  4  McCord,  (S.  C.)  336;  Cheever  v.  Railroad  Co.,  39  Vt.  363;  while  in 
Rhode  Island,  Connecticut,  New  Hampshire,  Minnesota,  Indiana.  North  Caro- 
lina, Mississippi,  Missouri,  and  Massachusetts,  the  common-law  rule,  with 
some  limitations,  prevails.  It  is  a  mere  incident  of  the  debt,  and  falls  with  it. 
Morris  v.  Bacon,  123  Mass.  58;  Benton  v.  Bailey,  50  Vt.  137. 

In  New  York,  bv  statute,  an  action  of  ejectment  by  a  mortgagee  is  abolished, 
and,  in  the  absence  of  any  contract  for  possession,  the  mortgagor  is  entitled 
thereto,  and  to  the  rents  and  profits  of  the  estate,  unless,  upon  a  proper  show- 
ing as  to  the  inadequacy  of  the  security,  and  the  irresponsibility  of  the  mort- 
gagor, the  courts  will  appoint  a  receiver  of  the  rents.  Astor  v.  Turner,  11 
Paige  (N.  Y.)  Ch.  436;  Sea  Ins.  Co.  v.  Stebbins,  8  id.  565.  But  after  sale,  a 
tenant  who  went  in.  under  the  mortgagor,  and  was  made  a  party  to  the  pro- 
ceedings, is  bound  to  attorn  to  the  purchaser.  Lovett  v.  Church,  9  How.  Pr. 
(N.  V.)  226. 

1  3  &  4  Will.  IV.,  c.  45.  §  23. 

1  Rex  v.  Edington,  1  East,  293;  Keech  v.  Hall,  1  Doug.  21;  Bree  r.  Holbech, 
2  id.  655;  Reading  of  Judge  Trowbridge,  8  Mass.  551;  Clark  v.  Reyburn,  1 
Kan.  281. 

3  Kenard  v.  Brown,  7  Neb.  449.  The  mortgagor's  right  to  lease  and  take  the 
rents  continues  until  it  is  divested  by  some  positive  interference  of  the  mort- 
gagee. Dunn  v.  Tillcry,  79  N.  C.  497;  Chadbourn  r/.  Henderson,  2  Baxter 
(  I  1  nn.)  460,  Gibson  v.  Farley,  16  Mass.  280. 


§  221.]  MORTGAGOR   AND    MORTGAGEE.  495 

foreclosure  and  final  decree.  But,  without  stopping  to  discuss 
the  relation  of  the  parties  to  the  estate  further,  it  may  be  said 
that  the  tenant  can  acquire  no  greater  rights  than  the  mortgagor 
himself  had,  but  may  defend  his  title  under  the  lease  to  the  same 
extent  that  the  mortgagor  could,  and  may  even  redeem  the  estate 
to  protect  his  term.1 

The  mortgagor  is  now  generally  treated,  at  least  in  equity,  as 
retaining  both  the  legal  and  the  equitable  title,  and  the  mort- 
gagee as  only  holding  under  his  mortgage  a  conditional  title  or 
lien  upon  the  land  for  the  payment  of  the  debt  it  is  given  to 
secure.2     But  whatever  may  be  the  true  relation  of  the  parties 

1  Rogers  v.  Moore,  11  Conn.  553.  As  to  tenant's  right  to  redeem,  see  Averill 
v.  Taylor,  8  N.  Y.  44.  In  Walker  v.  King,  44  Vt.  601,  it  was  held  that  a  mortgagee 
who  has  never  taken  possession  under  his  mortgage,  but  has  permitted  1  he 
assignee  of  the  mortgagor  to  remain  in  possession,  has  no  greater  claim  against 
him  for  rents  and  profits  than  he  would  have  against  the  mortgagor;  and  it  is 
well  settled  that  he  has  no  claim  upon  the  mortgagor  therefor,  either  at  law  or 
in  equity.  Ex  parte  Wilson,  2  V.  &  B.  252;  Hele  v.  Bexley,  20  Beav.  127; 
Walmsley  v.  Milne,  7  C.  B.  N.  S.  115;  Moss  v.  Gallimore,  1  Doug.  279;  Trent 
v.  Hunt,  9  Exch.  14;  Jolly  v.  Arbuthnot,  28  L.  J.  Ch.  547;  Cole  on  Ejectment; 
38,  473.  In  Georgia,  the  mortgagor  is  entitled  to  all  the  rents  and  profits  of  the 
land,  until  he  is  sold  out  and  dispossessed  by  foreclosure  proceedings.  Vason 
v.  Ball,  56  Ga.  268.  In  Kentucky,  unless  the  rents  and  profits  are  specially 
pledged,  the  same  rule  prevails,  and  the  mortgagee  cannot  claim  them  as  a 
legal  incident  of  the  estate.  A  court  of  equity  may,  after  the  debt  becomes 
due,  if  the  property  is  inadequate  to  secure  the  debt,  in  an  action  to  foreclose 
the  mortgage,  appoint  a  receiver  of  the  rents.  Bui  if  there  is  no  deficiency,  they 
go  to  the  mortgagor.  Douglass  v.  Cline,  12  Bush  (Ky.)  608.  In  Mississippi, 
the  mortgagor  retains  the  legal  title  and  right  of  possession  until  condition 
broken,  and  the  mortgagee  cannot  interfere  therewith,  nor  can  the  mortgagee 
take  the  rents  and  profits  unless  so  agreed.  Myers  v.  Estell,  48  Miss.  373; 
Black  v.  Payne.  52  Miss.  271.  In  North  Carolina,  the  mortgagor  is  treated  as 
having  an  equitable  freehold.  Stale  v.  Ragaland,  75  N.  C.  12.  In  Tennessee, 
the  mortgage  to  the  extent  of  the  mortgage  debt  is  pro  tanto  a  sale,  giving  the 
mortgagee  all  the  rights  of  a  bona  fide  purchaser.  2  Tenn.  Ch.  531.  So  in 
Iowa.  Hewitt  v.  Rankin,  41  Iowa,  35.  In  Vermont,  after  condition  broken,  he 
may  enter  and  take  possession  without  previous  notice,  if  he  can  do  so  peace- 
fully. Fuller  v.  Eddy,  49  Vt.  11.  So  in  Maine,  he  may  enter  and  harvest  the 
crops,  unless  the  mortgagor  is  occupying  by  agreement,  as  tenant.  Gilman  v. 
Wills,  66  Me.  273.  In  Pennsylvania,  the  morigagee  is  treated  as  having  the 
title  and  right  of  possession  to  hold  until  payment,  and  may  enter  and  hold  the 
lands  and  receive  the  rents  and  profits  unlil  the  mortgage  debt  is  paid.  Tryon 
v.  Munson,  77  Penn.  St.  250.  These  conflicting  doctrines  are,  however,  only 
applicable  to  ordinary  mortgages,  and  the  parties  may,  by  special  provision, 
entirely  change  the  respective  rights  of  the  parties  under  the  mortgage. 

2  Carpenter  v.  Bowen,  42  Miss.  2S;  Trimm  v.  Marsh,  54  N.  Y.  599;  Fletcher 


496  STATUTES   OF   LIMITATION.  [CHAP.   XVIIT. 

to  the  property,  it  is  held  that,  whichever  may  be  in  possession, 
he  holds  the  possession  for  the  other,  until  condition  broken,  and 
neither  can  set  up  an  adverse  claim  against  the  other  until  that 

v.  Holmes,  32  Ind.  497;  Buchanan  v.  Munroe,  22  Tex.   537;  Williams  v.  Beard, 
1  S.  C.  309;  Johnston  v.  Houston   47  Mo.  227;  Fletcher  v.  Holmes.  32  Ind.  497; 
Elfe  Ass'n  v.  Cole,  26  Ga.  197;  Mack  v.  Wetzlar,  39  Cal.  247;   Priest  v.  Wheelock 
5S  111.  114.     Although  in  form  a  conveyance  in  fee  upon  condition,  yet,  in  effect, 
even  after  condition  broken,  it  is  a  mere  security  for  a  debt,  and  the  title  reverts 
without  a  reconveyance,  whenever  the  debt  is  paid.      Pease  v.  Pilot  Knob  Iron 
Co.,  49  Mo.  124;  and,  before  foreclosure,  is  not  subject  to  levy  and  sale,  Buck- 
ley v.  Daley,  45  Miss.  338.     And  until  condition  broken  he  is  entitled  to  pos- 
session, unless  otherwise  provided  in  the  mortgage,  and  is  in  by  right  and  by 
virtue   of   his   title,  and    not  as  a  tenant  at  sufferance.      Hooper  v.  Wilson,   12 
Vt.  695;  Crippen  v.  Morrison,  13  Mich.  23;  Kidd  v.  Temple,  22  Cal.  255.     And 
if  a  mortgagee  takes  a  lease  of  the  mortgagor  of  the  same  lands,  he  will  be 
treated  as  holding  under  the  lease  until  he  has  made  his  election  to  hold  under 
the    mortgage.     Wood    v.    Felton,   9   Pick.   (Mass.)   171.     And  after   condition 
broken  he  may  hold  under  his  mortgage  without  first  surrendering  possession 
under  the  lease.    Shields  v.  Lozear,  34  N.  J.  L.  496.    The  mortgagor's  interest  is 
an  estate  of  inheritance  in  no  wise  affected  by  the  mortgage  before  entry  and 
foreclosure.     White  v.  Rittenmeyer,  30  Iowa,  268.     See  Miner  v.  Beekman,  11 
Abb.  Pr.  N.  S.  (N.  Y.)  147;  Norcross  v.  Norcross,  105  Mass.  265;  O'Dougherty 
v.  Felt,  65  Barb   (N.  Y.)  220.     And  even  after  the  debt  is  due  he  is  not  entitled 
to  the  rents  and  profits  unless  the  security  is  insufficient.     Myers  v.  Estell,  48 
Miss.  373.     As  to  the  nature  of  mortgagor's  estate,  see  Kline  v.  McGuckin,  24 
N.  J.   Eq.  411;   Hill  v.  Hewitt,  35   Iowa,   563;  Trimm  v.   Marsh,   54  N.  Y.  599; 
Annapolis,  etc.,  R.  R.  Co.  v.  Gantt,  39  Md.  115.     The  mortgage  is  but  a  security, 
and  the  freehold  still  remains  in  the  mortgagor.     Jackson   v.  Willard,  4  Johns. 
(N.  Y.)  41.      He  is  seised  and  is  the  legal  owner.     Orr  v.  Hadley,  36  N.  H.  575; 
Hitchcock  v.  Harrington,  6  Johns.  (N.   Y.)  290;   Runyan  v.  Mersereau,   11  id. 
534.     The  mortgagee,  before  condition  broken  at  least,  has  no  estate  in  the  land 
distinct  from  the  debt.     Aymar  v.  Bill,  5  Johns.  Ch.  570.     When  out  of  posses- 
sion he  cannot  be  treated  as  the  proprietor  of  the  estate.     Norwich  v.  Hubbard, 
22  Conn.  587.     It  is  only  a  security,  and  the  mortgagor  has  the  same  rights  lo 
the  estate  that  he  ever  had,  except  against  the  mortgagor.     Wilkins  v.  French, 
20  Me.  in;  Orr   v.  Hadley,  36   N.  H.  575.     And    as   against  him,  until   he  has 
legally  entered  for  condition   broken,  Kennett  v.  Plummer,  28  Mo.  142;   under 
foreclosure  proceedings,  or  as  a  judgment  of  a  court  of  law,  or  by  the  consent 
of  the  mortgagor,  Hooper  v.  Wilson,  12  Vt.  695;  Crippen  v.  Morrison,  13  Mich. 
23;   Pierce  v.  Brown,  24  Vt.  195;  Hill  v.  Robertson,  24  Miss.  368;  Pratt  v.  Skol- 
field,  45  Me.  386.     Lord   Mansfield,  in  The   King  v.  St.  Michael's,  2  Doug.  631, 
very  clearly  defines  the  relations  of  the  mortgagor  and  mortgagee  to  the  lands, 
lie  smvs:  "  A  mortgagor  in   possession  gains  a   settlement   because  the   mort- 
gagee, notwithstanding  the  form,  has  but  a  chattel,  and  the  mortgage  is  only 
irity.     It  is  an  affront  to  common  sense  to  say  that  the  mortgagor  is  not  the 
real  owner."     Sec  Martin  v.  Weston,  2  Burr.  078.     In  Eaton  v.  Jaques,  2  Doug- 
455,  a  term  for  ynrs  was  assigned  by  way  of  mortgage  with  a  clause  of  red  em  p- 
and   it  was  held   by  the  court  that  the  lessor  could  not  sue  the  mortgagee 


§  221.]  MORTGAGOR  AND  MORTGAGEE.  497 

event  has  transpired.1  The  rule  is  that  the  mortgagor  and  his 
vendee  hold  in  subordination  to  the  title  of  the  mortgagee,  not 
adversely  to  him;  and  the  statute  of  limitations  does  not  run, 
even  after  the  law-day  is  past,  as  in  favor  of  the  mortgagor  or  his 
vendee,  without  some  overt  act  throwing  off  allegiance;  for  it 
cannot  be  known  otherwise  that  the  mortgagor  or  his  vendee  is 
not  quietly  enjoying  the  possession  of  the  equity  of  redemption, 
at  all  times  acknowledging  the  rights  of  the  mortgagee ;  and  if, 
in  an  action  by  the  second  mortgagee  against  the  mortgagor,  he 
recover  the  property,  and  purchase  subsequently  at  his  own  sale, 
the  first  mortgagee  is  not  barred,  by  limitation,  until  six  years 
from  the  sale,  of  his  right  of  foreclosure.2  "One  is  much  at  a 
loss,"  says  Patterson  J.,3  "as  to  the  proper  terms  in  which  to 
describe  the  relation  of  mortgagor  in  possession  to  the  mortgagee. 
In  one  case4  such  mortgagor  is  held  to  be  tenant  to  the   mort- 

as  assignee  of  all  the  estate,  right,  title,  interest,  etc.,  of  the  mortgagor  even 
after  the  mortgage  had  been  forfeited,  unless  the  mortgagee  had  taken  actual 
possession.  See  also  Walker  v.  Reeves,  2  Doug.  461,  note  1.  In  The  King  v. 
Eddington.  1  East,  288,  it  was  held  that  the  object  of  a  mortgage  is  merely  to 
secure  a  debt,  and  that  the  legal  estate  still  remains  in  the  mortgagor;  and  it 
was  held  also  that  the  husband  of  a  woman  who  had  an  estate  in  a  term  for 
ninety-nine  years,  but  which  had  been  by  her  and  her  first  husband  mortgaged 
to  secure  a  loan,  gained  a  settlement  by  a  residence  upon  the  estate  for  forty 
days,  under  a  statute  which  enabled  a  person  owning  a  freehold  estate  in  a 
parish,  who  resided  upon  it  for  the  period  of  forty  days,  to  acquire  a  settlement 
therein;  and  the  court  adopted  the  rule  as  stated  by  Lord  Mansfield  in  The 
King  v.  St.  Michael's,  supra.  See  opinion  of  Grose,  J.  The  legal  estate  of  the 
mortgagor  is  not  divested  by  condition  broken  or  entry  therefor  by  the  mort- 
gagee, but  he  retains  such  an  estate  therein  that  it  may  be  levied  upon  and  sold 
under  execution.  Trimm  v.  Marsh,  54  N.  Y.  599;  Gorham  v.  Arnold  22  Mich. 
247.  But  contra,  see  Buckley  v.  Daly,  45  Miss.  338.  In  Kennett  v.  Plummer, 
58  Mo.  142,  it  was  held  that,  until  after  condition  broken  and  entry  by  the  mort- 
gagee, the  mortgagor  continues  owner,  and  may  lease  the  estate,  and  in  every 
respect  deal  with  it  as  owner.  M'Kircher  v.  Hawley,  16  Johns.  (N.  Y.) 
289;  Partington  v.  Woodcock,  5  N.  &  M.  672;  Watts  v.  Coffin,  n  Johns. 
<N.  Y.)  495;  Rogers  v.  Humphreys,  4  Ad.  &  El.  299;  Partington  v.  Wood- 
cock, 5  N.  &  M.  672;  Peters  v.  Elkins,  14  Ohio,  344;  Rogers  v.  Moore.i  I 
Conn.  553. 

1  Gould  v.  Newman,  6  Mass.  239;  Svveetser  v.  Lowell,  33  Me.  446;  Colton  v. 
Smith,  11  Pick.  (Mass.)  311;  McGuire  v.  Shelby,  20  Ala.  456. 

2  Boyd  v.  Beck,  29  Ark.  703;  Jamison  v.  Perry.  38  Iowa,  14;  Rockwell  v.  Serv- 
ant, 63  III.  424;  Parker  v.  Banks,  79  N.  C.  480;  Medley  v.  Elliott,  62  111.  532; 
Martin  v.  Jackson,  27  Penn.  St.  504. 

3  Jones  v.  Williams,  5  Ad.  &  El.  291. 

4  Partridge  v.  Bere,  5  B.  &  Aid.  604. 

[stats,  of  lim. —  32] 


498  STATUTES    OF    LIMITATION.  [CHAP.   XVIII. 

gagee;  sometimes  he  is  said  to  be  the  bailiff  of  the  mortgagee; 
and  in  a  late  case  Lord  Tenterden  said  that  his  situation  was  of  a 
peculiar  character.  But  it  is  clear  that  his  possession  is,  at  all 
events,  not  adverse  to  the  title  of  the  mortgagee."1  It  has 
sometimes  been  thought  that  the  mortgagee  occupies  the  position 
of  a  trustee  to  the  mortgagor;  but  as  there  is  no  trust  expressed 
in  the  mortgage,  if  he  can  be  said  to  be  a  trustee  at  all,  it  is  only 
by  implication,  and  in  subordination  to  the  main  purposes  of  the 
contract.  His  right  is  qualified  and  limited,  yet  he  has  a  distinct 
and  beneficial  interest  in  the  estate  which  may  in  a  certain  contin- 
gency become  absolute  and  perpetual,  and  may  be  enforced  against 
the  mortgagor.  It  is  a  general  rule  that  a  trustee  is  not  allowed 
to  deprive  his  cestui  que  trust  of  the  possession ;  but  a  court  of 
equity  never  interferes  to  prevent  the  mortgagee  from  assuming 
the  possession.  In  this  respect,  it  will  be  perceived  that  there  is 
a  marked  difference  in  the  contract  between  mortgagor  and  mort- 
gagee, and  trustee  and  cestui  que  trust.  A  trustee  is  estopped  in 
equity  from  dispossessing  his  cestui  que  trust,  because  such  dis- 
possession would  be  a  breach  of  trust.  A  mortgagee  cannot  be 
estopped,  because  in  him  it  is  no  breach  of  trust,  but  in  con- 
formity to  his  contract.  On  the  same  principle  a  mortgagee  is 
not  prevented,  but  assisted  in  equity,  when  he  has  recourse  to  a 
proceeding  which  is  not  only  to  obtain  the  possession,  but  the 
absolute  title  to  the  estate,  by  foreclosure.  There  is  no  resem- 
blance, in  this  respect,  to  the  character  of  a  trustee,  but  to  a., 
character  directly  opposite;  and  it  is  in  this  opposite  character 
that  the  mortgagee  accounts  for  the  rents  and  profits  when  in 
possession,  and  when  he  is  not,  receives  the  interest  of  his  mort- 
gage debt.  The  ground,  therefore,  on  which  a  mortgagee  is  in 
any  case  and  for  any  purpose  considered  to  have  a  character 
resembling  that  of  a  trustee  is  the  partial  and  limited  right, 
which,  in  equity,  he  is  allowed  to  have  in  the  whole  estate,  legal 
and  equitable.  And  hence,  although  as  a  general  rule  the  statute 
will  not  apply  to  a  direct  trust,  yet  a  mortgagee  is  allowed  to  set 
up  lapse  of  time  as  a  bar  to  the  equity  of  redemption.2  After  the 
mortgage  debt  has  been  paid,  if  the  mortgagee  is  in  possession 
from  that  time,  he  holds  the  premises  as  trustee  for  the  mort- 
gagor, and  he  cannot  set  up  his  possession  as  adverse  until  he  has. 

1  Wilkinson  v.  Flowers,  37  Miss.  579. 
'  Cholmondeley  v.  Clinton,  2  J.  &  W.  I. 


§  222.]         MORTGAGOR  AND  MORTGAGEE.  499 

done  some  act  which   shows  that  his  possession  and   claim  is 
adverse.1 

SEC.  222.  Distinction  between  Note  or  Bond,  and  the  Mortgage 
given  to  secure  its  Payment.  Periods  of  Limitation  as  to,  in  the 
several  States. — -The  fact  that  a  note  or  other  security  is  recited 
in  the  mortgage  which  is  given  to  secure  its  payment  does  not 
raise  the  note  or  other  debt  from  the  character  of  a  simple  con- 
tract to  a  specialty,  or  in  anywise  affect  or  change  the  operation 
of  the  statute  of  limitations  thereon;  nor,  on  the  other  hand, 
generally,  does  the  circumstance  that  the  statute  has  run  upon 
the  note  or  debt  affect  the  mortgage  given  to  secure  it,  or  destroy 
the  lien  which  it  imposes  upon  the  land  for  the  payment  of  such 
debt,  (a)  In  some  of  the  States,  as  California,2  Nevada,3 
Nebraska,4  Illinois,5  Iowa,6  Texas,7  and  Kansas,8  the  debt  is 
regarded  as  the  principal,  and  the  mortgage  as  a  mere  incident, 
and,  consequently,  when  the  debt  is  barred,  the  remedy  upon  the 
mortgage  is  also  barred.  This  peculiar  doctrine,  however,  is  due 
to  the  statutes  in  those  States,  rather  than  to  the  introduction  of 
a  new  principle  by  the  courts.  In  most  of  the  States  the  statute 
runs  upon  the  note  or  debt,  which  is  merely  a  simple  contract, 
within  a  shorter  period  than  it  does  upon  the  mortgage,  which  is 

1  Green  v.  Turner,  38  Iowa,  112;  Hammond  v.  Hopkins,  3  Yerg.  (Tenn.)  525; 
Yarbrough  v.  Newell,  10  id.  376. 

*  Lord  v.  Morris,  18  Cal.  482. 

3  Henry  v.  Confidence  Gold  M.  Co.,  1  Nev.  619. 

*  Hurley  v.  Estes,  6  Neb.  386. 

6  Harris  v.  Mills,  28  111.  44;  Hagan  v.  Parsons,  67  id.  170. 
'  Gower  v.  Winchester,  33  Iowa,  303;  Clinton  Co.  v.  Cox,  37  id.  570. 
'Ross  v.  Mitchell,  28  Tex.  150;  Duty  v.  Graham,  12  id.  427. 
8Schmucker  v.  Sibert,  18  Kan.  104. 

(a)  As  against  the  foreclosure  of  a  Plow  Co.  v.  Webb,  141  U.  S.  616; 
mortgage,  the  statute  runs  only  from  Watts  v.  Creighton,  85  Iowa,  154. 
the  maturity  of  the  note  which  it  An  unexplained  delay  of  sixteen  or 
secures,  although  the  mortgage  con-  seventeen  years  jn  seeking  to  avoid  a 
tains  a  stipulation  that  the  whole  foreclosure  sale  is  such  laches  as  will 
principal  and  interest  shall  become  im-  bar  a  suit  in  equity  brought  for  that 
mediately  due  upon  a  default  in  paying  purpose.  Fennyery  v.  Ransom,  170 
the  interest,  or  any  part  thereof,  ac-  Mass.  303.  And,  as  all  suits  must  be 
cording  to  the  tenor  ot  the  note,  such  prosecuted  with  reasonable  diligence  in 
stipulation  being  regarded  as  a  penalty  order  to  have  the  doctrine  of  lis  pendens 
for  the  creditor's  benefit,  and  he  waives  apply,  an  unexplained  delay  for  over 
all  advantage  he  might  gain  from  the  twenty  years  to  proceed  with  a  fore- 
default  if  he  thereafter  accepts  interest,  closure  suit  is  such  laches  as  disables 
Mason  v.  Luce,  116  Cal.  232;  Moline  the  mortgagee  from  enforcing  the  mort- 
gage.    Taylor  v.  Carroll,  89  Md.  32. 


500  STATUTES   OF   LIMITATION.  [CHAP.    XVIII. 

a  specialty ;  but  while  the  debt  itself,  because  of  the  statute  bar, 
ceases  to  be  enforceable  as  a  personal  claim,  yet  the  lien  created 
by  the  mortgage,  as  well  as  the  right  to  enforce  it,  still  remains, 
and,  if  enforced  before  it  is  also  barred,  continues  as  a  valid 
security  for  the  debt  and  for  the  interest  accruing  thereon  even 
after  the  debt  itself  is  barred  by  the  statute, — the  rule  being, 
that,  where  the  security  for  a  debt  is  a  lien  on  property,  real  or 
personal,  the  lien  is  not  impaired  in  consequence  of  the  running 
of  the   statute  of  limitations  upon  the  debt.1     The   debt  is  not 

1  Chamberlain  v.  Meeder,  16  N.  H.  381.     The  general  rule  that  a  discharge  of 
the  debt  discharges  the  mortgage  lien  given  to  secure  it  does  not  apply  where 
the  debt  is  merely  barred  by  the  statute   of  limitations  or   bv  a  certificate  in 
bankruptcy.     Buck  v.   Cooper,   26  Miss.   599.     The  rule  relative  to   the  extin- 
guishment of  the  mortgage  under  such  circumstances  is,  that  the  mortgage  is 
not  extinguished  by  an  extinguishment   of  the  mere  personal  liability  of  the 
mortgagor   by  operation  of  law  or   by  agreement  of   the   parties,  even  if  there 
is  no  intention  to  extinguish  the  debt  itself.      Donnelly  v.  Simonton,  13  Minn. 
301 ;  holding  that  the  mortgage  is  not  extinguished  by  the  running  of  the  statute 
upon  the  note  or  obligation  which  it  is  given  to  secure.      In  Higgins  v.  Scott,  2 
B.  &  Aid    413,  this  principle  is  illustrated  in  the  case  of  an  attorney's  lien  upon 
a  judgment,  which  it  was  held  might  be  enforced,  although  his  remedy  for  the 
debt  itself  was  barred.     Potter  v.  Stransky,  48  Wis.  235;  Thayer  v.  Mann,   19 
Pick.  (Mass.)  535;  Townsend  v.  Jennison,  9  How.  (U.  S.)4i3;  Belknap  v.  Gleason, 
11  Conn.  160;  M'Elmoyle  v.  Cohen,  13  Pet.  (U.  SO312;  Spears  v.  Hartley,  3  Esp. 
Si;   Pratt  v.  Huggins,  29  Barb.  (N.  Y.)  277;  Crane  v.  Page,  4  Cush.  (Mass.)  483; 
Smith    v.   Washington  City,    etc.,    R.    R.   Co.,   33  Gratt.  (Va.)  617;    Browne  v. 
Browne,  17  Fla.  607,  35  Am.  Rep.  96;   Union  Bank  v.   Stafford,  12   How.  (U.  S.) 
340;  Eastman  v.  Forster.  8  Met.  (Mass.)  19;  Sturges  v.  Crowninshield,  4  Wheat. 
(U.  S.)  122;   Hughes  v.  Edwards,  9  id.  489,   Harris  v.  Vaughn,  2  Tenn.  Ch.  483; 
Elkins  v.  Edwards,  8  Ga.  325;  Waltermire  v.  Westover,  14  N.  Y.   16;  Myer  v. 
Beal,  5  Oreg.  130;  Trotter  v,  Erwin,  27  Miss.  772;  Cookes  v.  Culbertson.  q  Nev. 
199;   Henry  v.  Confidence  Gold   M.  Co.,  1   Nev.  619;   Nevitt  v.  Bacon,  32  Miss. 
212;  Wilkinson  v.  Flower,   37  id.   579;   Read  v.   Edwards,  2  Nev.   262;  Gary  v. 
May,  16  Ohio,  66;  Fisher  v.  Mossman,  11   Ohio  St.  42;   Wood  v.  Augustine,  61 
Mo.  46;   Longworth  v.  Taylor,  2  Cin.  (Superior  Ct.  Ohio)  39;   Kennedy  v.  Knight, 
21  Wis.  340;   Kellar  v.  Sinton,  14  B.  Mon.  (Ky.)  307;   Richmond  v.  Aiken,  25  Vt. 
124;  Ohio  L.  &  T.  Ins.   Co.  v.  Winn    4  Md.  Ch.  253;   Cleveland  v.  Harrison,  15 
Wis.  670.     "  It   is  well  settled,"  says  Hinman,  C.  J.,   in   Hough   v.  Bailey,  32 
Conn.  288,  "  that  the  mere  fact  that  a  debt  is  barred  at  law  by  the  statute  of 
limitations  does  not  constitute  a  defense  to  a  bill  for  the  foreclosure  of  a  mort- 
gage given  to  secure  it,  or  to  an  action  of  ejectment  to  recover  possession  of  the 
mortgaged   estate.     In  order  to  bar  the  mortgagee's  right  of  foreclosure,  or  a 
suit  at  law  to  recover  possession,  the  mortgagor  must  have  been  permitted  to 
remain  in  possession  of  the  premises  for  fifteen  years  at  least,  without  payment 
of   any  portion  of  the  debt  or  the  performance  of  any  act  recognizing  the  con- 
tinu-1  existence  of  the  mortgage."     Jarvis  v.  Woodruff,  22  Conn.  548;   Haskell 
V.  Bailey,  id.  569. 


§  222.]  MORTGAGOR   AND    MORTGAGEE.  50I 

extinguished,  but  the  remedy  is  taken  away  by  the  statute.1 
A  mortgage,  being  a  specialty,  is  barred  by  the  lapse  of  the 
period,  after  it  becomes  due,  fixed  upon  by  statute  for  that  class 
of  obligations;  and  where  specialties  are  not  specially  provided 
for,  they  are  left  subject  to  the  operation  of  the  common-law 
presumption  of  payment  arising  from  the  lapse  of  twenty  years, 
without  the  payment  of  any  part  of  the  principal  or  interest,  after 
it  becomes  due.a  In  some  of  the  States  the  statute  provides  that 
unless  a  specialty  is  paid,  either  wholly  or  in  part,  within  the 
period  of  twenty  years,  it  shall  be  presumed  to  be  paid;  and 
these  statutory  presumptions,  although  only  a  re-enactment  of  the 
common-law  rule  by  the  legislature,  are  nevertheless  treated  as 
deriving  increased  vigor  by  such  enactment,  and  operate  as  an 
absolute  bar  to  a  recovery  thereon,  after  the  lapse  of  the  period 
fixed  by  statute,  unless  the  operation  of  the   statute   has   been 

1  Low  v.  Allen,  26  Cal.  141;  Sichel  v.  Carrillo,  42  id.  493;  Beckford  v.  Wade, 
17  Ves.  87. 

2  The  presumption  that  a  mortgage  is  paid  only  arises  at  the  expiration  of 
twenty  years  from  the  last  payment  of  principal  or  interest.  Peck  v.  Mallams, 
10  N.  Y.  509;  People  v.  Wood,  12  Johns.  (N.  Y.)  242.  Consequently,  if  within 
that  lime  payments  have  been  made  by  the  mortgagor  on  account  of  the  mort- 
gage, the  presumption  cannot  arise,  New  York  Life  Ins.,  etc.,  Co.  v.  Covert,  3 
Abb.  Dec.  (N.  Y.)  350;  or  even  if  he  has  admitted  the  legal  existence  of  the 
mortgage,  Heyer  v.  Pruyn,  7  Paige  (N.  Y.)  Ch.  465.  And  an  admission  by  a 
purchaser  from  the  mortgagor  and  a  promise  to  pay  it  within  twenty  years  will 
rebut  the  presumption  of  payment  both  as  against  the  purchaser  and  his  judg- 
ment creditors.     Park  v.  Peck,  I   Paige  (N.  Y.)  Ch.  477;   Belmont  v.  O'Brien, 

12  N.  Y.  394;  Jackson  v.  Pierce,  10  Johns.  (N.  Y.)  414;  Newcomb  v.  St.  Peter's 
Church,  2  Sandf.  (N.  Y.)  Ch.  636;  Marvin  v.  Hotchkiss,  6  Cow.  (M.  Y.)40i.. 
But  this  presumption  cannot  be  rebutted  by  mere  proof  of  non-payment  in  fact. 
Fisher  v.  New  York,  67  N.  Y.  73.  "  It  is  perfectly  settled,"  says  Sir  William 
Grant,  in  Barron  v.  Martin,  19  Ves.  327,  "  that  twenty  years'  possession  by  the 
mortgagee  is  prima  facie  a  bar  to  the  right  of  redemption."  Crawford  v.  Tay- 
lor, 42  Iowa,  260;  Moore  v.  Cable,  1  Johns.  (N.  Y.)  Ch.  385;  Blake  v.  Foster,  2 
B.  &  B.  402;  Demarest  v.  Wynkoop,  3  Johns.  (N.  Y.)  Ch.  129;  Hall  v.  Denckla, 
28  Ark.  506;  Johnson  v.  Mounsey,  40  L.  T.  N.  S.  234;  Hoffman  v.  Harrington, 
33  Mich.  392;  Amory  v.  Lawrence,  3  Cliff.  523;  Bates  v.  Conrow,  n  N.  J.  Eq. 
137;  Ayres  v.  Waite,  10  Cush.  (Mass.)  72;  Roberts  v.  Littlefield,  48  Me.  61; 
Howland  v.  Shurtleff,  2  Met.  (Mass.)  26;  Randall  v.  Bradley,  65  Me.  43;  Slicer 
v.  Bank  of  Pittsburgh,  16  How.  (U.  S.)  571;  Bailey  v.  Carter,  7  Ired.  (N.  C.) 
Eq.  282;  Slee  v.  Manhattan  Co.,  1  Paige  (N.  Y.),  Ch.  48;  Hughes  v.  Edwards,  9 
W     at.  (U.  S.)48g;  Dexter  v.  Arnold,  1  Sumn.  (U.  S.)  109;   Knowlton  v.  Walker, 

13  Wis.  264;  Cook  v.  Finkler,  9  Mich.  131;  Ross  v.  Norvell,  1  Wash.  (Va.)  17; 
Gunn  v.  Brantley,  21  Ala.  633;  Montgomery  v.  Chadwick,  7  Iowa,  114;  Hallesy 
v.  Jackson,  66  111.  139;  McNair  v.  Lot,  34  Mo.  2S5. 


502  STATUTES   OF   LIMITATION.  [CHAP.    XVIII. 

saved  by  some  one  of  the  modes  provided  in  the  statute ;  and  a 
court  of  equity  will  decree  the  satisfaction  of  a  mortgage  which 
has  been  permitted  to  lie  dormant  during  the  entire  period  fixed 
by  statute  for  the  maturing  of  this  presumption ; '  whereas,  under 
the  common-law  presumption,  while  a  court  of  equity  in  analogy 
to  the  statute  will  not  enforce  a  mortgage  which  has  been  per- 
mitted to  lie  dormant  for  the  period  requisite  under  the  statute 
to  acquire  the  title  to  land  by  adverse  possession,  neither,  on  the 
other  hand,  will  it  ordinarily  decree  its  satisfaction  unless  pay- 
ment in  fact  is  proved, — the  mere  lapse  of  time,  of  itself,  not 
being  regarded  as  a  sufficient  ground  for  its  interference,4  and  the 
presumption  raised  by  the  lapse  of  such  period  is  liable  to  rebuttal 
by  evidence  which  fairly  raises  a  contrary  presumption.3  It  may 
be  said  that  the  special  reasons  which  will  let  a  mortgagor  in  to 
redeem  after  the  lapse  of  such  period  must  some  within  some  one 
of  the  exceptions  named  in  the  statute;4  and  if  the  mortgagor  or 
those  claiming  under  him  is  under  any  disability  at  the  time  when 
the  mortgage  debt  matures,  or  the  condition  thereof  is  broken, 
neither  the  statute  nor  the  presumption  applies  until  such  disa- 
bility is  removed.5  There  is  another  circumstance  to  be  con- 
sidered in  determining  the  right  of  the  mortgagor  to  redeem 
after  the  mortgagee  has  been  in  possession  for  the  requisite 
statutory  period,  and  that  is,  whether  during  the  entire  period 
his  possession  has  been  adverse  to  the  mortgagor,  because,  if  he 

1  Kellogg  v.  Woods,  7  Paige  (N.  Y.)  Ch.  578. 

2  Coates  v.  Roberts,  2  Phila.  (Penn.)  244. 

3  Ayres  v.  Waite,  10  Cush.  (Mass.)  72,  where  it  was  held  that,  where  no  entry 
to  foreclose  a  mortgage  has  been  made  in  compliance  with  the  statute,  a  bill  to 
redeem  may  be  brought  by  a  mortgagor  at  any  time  within  twenty  years,  and 
that  if  the  mortgagee  has  been  in  peaceable  possession  after  condition  broken  for 
that  period,  no  interest  having  been  paid,  the  right  to  redeem  is  not  favored  in 
equity,  and  in  analogy  to  the  statute  the  mortgagor  will  not,  except  for  special 
reasons,  be  admitted  to  redeem.     See  Robinson  v.  Fife,  3  Ohio  St.  551. 

4  Limerick  ?>.  Voorhis,  9  Johns.  (N.  Y.)  129;  Demarest  v.  Wynkoop,  3  Johns. 
Ch.  IS.  Y.)  129. 

*  Beckford  v.  Wade,  17  Ves.  87;  Price  v.  Copncr,  1  S.  &  S.  347;  Jenner  v. 
Tmcey,  3  P.  VVms.  287,  note;  White  v.  Ewer,  2  Vent.  340;  Belch  v.  Harvey,  3 
P.  Wms.  287,  note;  Lamar  v.  James,  3  IL  &  M.  (Md.)  328;  Demarest  v.  Wyn- 
koop,  supra.  The  instances  where  a  mortgagee  or  mortgagor  are  under  disabil- 
ities must  be  extremely  rare,  as  usually  neither  will  be  under  a  disability  at  the 
date  of  the  mortgage,  But  instances  may  arise  where  a  disability  intervenes 
between  the  date  of  the  mortgage  and  the  accruing  of  a  right  of  action  under 
[t,    is  where  either  party  becomes  insane. 


'■§  222.]  MORTGAGOR   AND    MORTGAGEE.  $03 

has  misled  the  mortgagor  by  assuming  any  obligation  to  him  as 
a  return  for  his  being  let  into  possession  or  otherwise,  whereby 
the  mortgagor  has  been  induced  to  lie  by  without  redeeming  the 
land,  a  court  of  equity  will  not  treat  the  possession  as  adverse.1 
In  those  States  where  special  statutory  provisions  are  made2  that 
a  failure  to  bring  proceedings  to  redeem  mortgaged  premises 
within  a  certain  number  of  years  after  entry  by  the  mortgagee 
shall  forever  bar  the  mortgagor,  of  course  a  court  of  equity  has 
no  power  to  override  the  statute  and  let  the  mortgagor  in  to 
redeem,  where  the  time  has  run  and  the  statue  fairly  applies;  but 
where  no  statutory  provision  is  made,  courts  of  equity  adopt  the 
period  prescribed  by  the  statute  for  the  acquisition  of  a  title  by 
possession  as  the  period  requisite  to  bar  a  right  of  entry  by  a 
mortgagor  or  mortgagee.3  (V) 

1  Demarest  v.  Wynkoop,  supra;  Rafferty  v.  King,  1  Keen,  601;  Hyde  v,  Dilla- 
way,  2  Hare,  528. 

5  As  in  California,  New  Jersey,  Kentucky,  Mississippi,  and  North  Carolina. 

3 Jarvis  v.  Woodruff,  22  Conn.  548;  Crittendon  v.  Brainard,  2  Root  (Conn.)  485; 
Skinner  v.  Smith,  1  Day  (Conn.)  124.  In  Haskell  v.  Bailey,  22  Conn.  569, 
Waite,  J.,  says:  "  Where  the  right  of  entry  upon  lands  is,  by  statute,  limited 
to  a  period  of  twenty  years,  a  mortgagor  who  has  suffered  the  mortgagee  to 
remain  in  possession  of  the  mortgaged  premises  during  that  period  cannot 
afterwards  sustain  a  bill  to  redeem,  without  showing  such  circumstances  as 
will  relieve  his  case  from  the  operation  of  the  general  rule.  As  in  this  State 
the  right  of  entry  upon  lands  is  limited  to  a  period  of  fifteen  years,  our  courts, 
proceeding  upon  the  same  principle,  have  repeatedly  held  that  the  mortgagor 
under  such  circumstances  must  bring  his  bill  within  fifteen  years,  and  is  not 
allowed  twenty  years  for  that  purpose.  And  they  have  said  that  it  may  be 
adopted  as  a  rule  that  the  mortgagee  being  in  possession,  a  mortgagor  shall 
not  have  more  than  fifteen  years  to  redeem  after  his  equitable  right  has  accrued, 
unless  the  delay  shall  be  accounted  for  by  statute  disabilities,  or  other  special 
circumstances  that  may  be  considered  equivalent."  Skinner  v.  Smith,  1  Day 
(Conn.)  127;   Lockwood  v.  Lockwood,  id.   295;  Jarvis  v.  Woodward,  supra. 

(a)  In  Maine,  it  is  held  that  the  right  is  merely  a  personal  security,  and  does 

of   redemption    is   not   lost  by  lapse  of  not  pass  the  fee,  a  tender  need  not  be 

time  when   the  mortgagor  retains  pos-  made  in  order  to  extinguish  the  lien  of 

session   for  himself   alone   and  not  for  a  mortgage;   the  tender  must  be  kept 

the  mortgagee;   that  while  lapse  of  time  good,    although    it   need    not    be    kept 

may  either  bar  the   mortgagee's  right  good   as   between   debtor   and  creditor 

to  redeem  or  give  rise  to  a  presumption  when,  upon  payment,  the  debtor  is  en- 

of   payment  in  his  favor,  vet,  as  both  titled  to  the  possession  of  his  property, 

these  facts  cannot  exist  as  to  the  same  See  Watkins   v.  Vrooman,  51    Hun  (N. 

mortgage  at  the  same  time,  the  ques-  Y.)  175;  Nelson  v.  Loder,  55  id.  173;  Ex- 

tion  which  of  them  will  prevail  depends  change  F.  Ins.  Co.  v.  Norris,  74  id.  527; 

upon  the  possession  for  the    requisite  Foster   v.    Mayer,    70  id.    265;  4   Kent 

lapse  of  time.     Bird  v.  Keller,  77  Maine,  Com.  (14th  ed.)  188,  and  n.  1 ;   McMan- 

270,273;   Hemmenway  v.  Lynde,  79  id.  aman    v.    Hinckley   (Minn.)  84   N.    W. 

299.     In  New  York,  where  a  mortgage  101S. 


$04  STATUTES   OF   LIMITATION.  [CHAP.    XVIII. 

SEC.  223.  Statutory  Provisions  Relative  to  Mortgages.  —  The 
same  rule  prevails  as  to  mortgage  debts  as  prevails  in  reference 
to  other  debts,  — that  the  statute  simply  defeats  the  remedy,  but 
does  not  extinguish  the  debt;  but  as  there  are  distinct  remedies 
upon  the  debt,  and  the  mortgage  given  to  secure  it,1  and  the 
nature  of  the  remedies  depends  upon  the  character  of  the  respec- 
tive instruments,  it  would  seem  to  follow  that,  in  the  absence  of 
an  express  statute  to  the  contrary  in  those  States  where  a  dis- 
tinction is  made  between  simple  contracts  and  instruments  under 
seal,  the  circumstance  that  the  statute  has  run  upon  the  one 
would  not  prevent  or  bar  the  remedy  upon  the  other,  upon  which 
the  statute  has  not  run;2  and,  as  we  have  before  seen,  except 
where  the  statute  expressly  or  by  fair  inference  destroys  the 
remedy  upon  the  mortgage,  at  the  same  time  that  the  remedy  is 
destroyed  as  to  the  debt,  it  may  be  enforced  after  the  statute  has 
run  upon  the  debt,  unless  the  same  statutory  period  is  applicable 
to  both.  Thus,  in  California,  no  distinction  exists  between 
simple  contracts  and  those  under  seal,  but  the  statute  runs  upon 
all  contracts,  obligations,  etc,  founded  upon  an  instrument  of 
writing,  except  a  judgment  or  decree,  etc.,  in  four  years;  and, 
as  the  courts  do  not  regard  a  mortgage  as  a  conveyance  of  real 
estate,  they  hold  that  when  the  debt  is  barred,  the  mortgage  is 

1  Lent  7'.Shear,  26  Cal.  361;  Law  v.  Allen,  id.  141. 

'J  Hough  v.  Bailey,  32  Conn.  288;  Heyer  v.  Pruyn,  7  Paige  (N.  Y.)  Ch.  465; 
Myer  v.  Beal,  5  Oreg.  130;  Crain  v.  Paine,  4  Cush.  (Mass.)  4S3.  Sustaining 
this  doctrine,  see  Hayes  v.  Frey,  54  Wis.  503;  Whil.tington  v.  Flint,  51  Ark.  504, 
51  Am.  Rep.  572;  Buckner  v.  Street,  15  Fed.  Rep.  365;  Nichols  v.  Briggs,  18  S. 
C.  473.  In  Hardin  v.  Boyd,  113  U.  S.  765.  Hatlan,  J.,  says:  "  An  action  to 
recover  the  debt  may  be  barred  by  limitation,  yet  the  right  to  enforce  the  lien 
for  purchase  money  may  still  exist."  Coldcleugh  v.  Johnson,  34  Ark.  312; 
Lewis  v.  Hawkins,  23  Wall.  (U.  S  )  119;  Birnie  v.  Main,  29  Ark.  591;  Cheney  v. 
Cooper,  14  Neb.  415;  Crook  v.  Glenn,  30  Md.  55;  Bird  v.  Keller,  77  Me.  270; 
Locke  v.  Caldwell,  91  III.  417;  Chouteau  v.  Burlando,  20  Mo.  482;  Elsberry  v. 
Boykin,  65  Ala.  336;  Mich.  Ins.  Co.  v.  Brown,  11  Mich.  265;  Browne  v.  Browne, 
17  Fla.  607,  35  Am.  Rep.  97;  McNair  v.  Lot,  34  Mo.  285;  Arrington  v.  Liscom, 
34  Cal.  365:  Bizzell  v.  Nix,  60  Ala.  281;  Waldo  v.  Rice,  14  Wis.  286;  Lingan  v. 
Henderson,  1  Bland  (Md.)  236;  Cheney  v.  Janssen,  20  Neb.  128;  Edmands  v. 
Tipton,  85  N.  C.  459;  Earnshaw  v.  Stewart,  64  Md.  513;  Christy  v.  Dana,  42 
Cal.  174;  Clough  v.  Rowe,  63  N.  H.  562;  Smith  v.  Woolfolk,  115  U  S.  143; 
Allen  v.  Early,  24  Ohio  St.  97;  Tryon  v.  Munson,  77  Penn.  St.  250;  Potter  v. 
Stransky,  48  Wis.  235;  Fuller  v.  Eddy,  49  Vt.  11;  Fisk  v.  Stewart,  26  Minn. 
365;  Green  v.  Mizelle.  54  Miss.  220;  Baltimore  &  Ohio  R.  R.  Co.  v.  Trimble,  51 
Ml  go;  (  ape  Girardeau  County^.  Harbison,  58  Mo.  90;  Wood  v.  Augustine* 
(  1  Mo.  46. 


§223.]  MORTGAGOR   AND    MORTGAGEE.     .  505 

also  extinguished,  because,  being  a  mere  incident  of  the  debt,  it 
cannot  exist  independently  of  its  principal,  which  is  the  debt. 
The  same  rule  prevails  in  several  of  the  new  States,  where  the 
old  theories  relative  to  real  estate  and  the  effect  of  sealed  instru- 
ments are  not  adopted  to  their  full  extent,  as  in  Iowa,1  Nevada,2 
Nebraska,3  Texas,4  Illinois,5  and  Kansas;6  and  such,  indeed, 
would  seem  to  be  the  necessary  rule  where  this  theory  relative  to 
the  nature  and  effect  of  mortgages  prevails.  In  some  of  the 
States,  express  limitations  are  provided  as  to  the  period  within 
which  an  action  for  the  enforcement  or  redemption  of  a  mortgage 
must  be  brought.  Thus,  in  New  York,7  it  is  provided  that  an 
action  for  the  redemption  of  a  mortgage,  either  with  or  without 
an  account  for  rents  and  profits  may  be  maintained,  unless  the 
mortgagee  or  those  claiming  under  him  have  continuously  main- 
tained an  adverse  possession  of  the  premises  for  twenty  years ;  (a) 
and  such  a  provision,  in  effect,  exists  in  the  New  Jersey  statute.8 
In  Illinois,9  it  is  provided  that  a  mortgage  shall  be  barred  in  ten 
years  after  a  right  of  action  accrued  thereon.      In  Kentucky,10  the 

1  Clinton  County  v.  Cox,  37  Iowa,  570;  Green  v.  Turner,  38  id.  112;  Govver  v. 
Winchester,  33  id.   303. 

5  Henry  v.  Confidence  Gold  M.  Cw  ,  1  Nev.  619. 

3  Hurley  v.  Estes,  6  Neb.  386;  Kyger  v.  Ryley,  2  id.  20. 

4  Ross  v.  Mitchell,  2S  Tex.  150;   Duty  v.  Graham,  12  id.  427. 

6  Hagan  v.  Parsons,  67  111.  170.  But  in  this  State  a  distinction  exists  between 
a  sealed  instrument  and  one  not  under  seal;  but  as  the  debt  is  treated  as  the 
principal,  and  the  mortgage  as  an  incident,  they  both  fall  together,  unless 
the  mortgage  contains  a  covenant  for  the  payment  of  the  debt,  in  which  case  the 
mortgage  is  not  barred  until  the  period  for  the  limitation  of  sealed  instruments 
has  expired.     Harris  v.  Mills,  28  111.  44. 

6  Chick  v.  Willetts,  2  Kan.  384;  Schmuker  v.  Sibert,  18  id.  104. 
1  Appendix,  New  York. 

8  Appendix,  New  Jersey. 

9  Appendix,  Illinois. 

10  Appendix,  Kentucky. 

(a)  The  New  York  Code  of  Civil  Pro-  and  who  has   not   assumed   the   mort- 

cedure,   £§   380,    381,    limiting  actions  gage.     Mack   v.  Anderson,   165  N.   Y. 

upon    sealed    instruments    to    twenty  529.     See  also  Murdock  v.  Waterman, 

years,  applies  to  an  action  to  foreclose  145  N.  Y.  65;   Boughton  v.  Van  Valken- 

a  mortgage;    and  if  a    mortgagor  has  burgh,  61    N.  Y.   S.  574.     In   general, 

paid  nothing  for  twenty  years  on  the  the  agreement  of  a  mortgagor's  vendee 

mortgage   debt,    but   certain    grantees  to  assume   the  mortgage,  when   made 

of    a   part   of   the    premises,    have    as-  before  the  note  is  barred  by  limitation, 

sumed   the   debt,  and  made  payments  is  a   new  promise  continuing  the  note, 

thereon,  this  does  not  stop  the  running  Daniels  v.  Johnson,  I2q  Cal.  415.     See 

of  limitations  in   favor  of  the  grantee  Robertson     v.    Stuhlmiller,    93     Iowa, 

of  another  parcel,  who  has  paid  nothing,  326. 


506  STATUTES   OF    LIMITATION.  [CHAP.    XVIII. 

remedy  of  a  mortgagor  for  the  redemption  of  a  mortgage  is 
barred  when  the  mortgagee,  or  any  person  claiming  under  him, 
has  been  in  the  continuous  adverse  possession  of  the  premises 
for  fifteen  years.  In  Mississippi,1  the  right  of  redemption  is 
barred  in  ten  years,  and  the  remedy  upon  the  mortgage  is  barred 
when  the  debt  is.2  In  Minnesota,3  a  remedy  upon  a  mortgage  is 
barred  in  ten  years  after  the  cause  of  action  accrued ;  and  such, 
also,  is  the  provision  in  North  Carolina,4  both  as  to  the  foreclosure 
and  redemption  of  a  mortgage.5  In  California,6  an  action  to 
redeem  a  mortgage  is  barred  in  five  years.  In  the  other  States, 
the  period  of  limitations  is  made  to  depend  upon  the  period 
requisite  to  bar  an  entry  upon  lands,  or,  in  most  of  the  new  States 
and  some  of  the  old  ones,7  upon  the  period  provided  for  the  limi- 
tation of  actions  upon  contracts  in  writing,  or  of  instruments 
under  seal.  In  New  Hampshire,  by  statute,8  the  note  is  kept  on 
foot  as  long  as  an  action  may  be  maintained  upon  the  mortgage, 
which  is  twenty  years  from  the  time  when  the  debt  becomes  due.9 
In  Pennsylvania  and  Wyoming,  the  period  of  limitation  is 
twenty-one  years,  adopting,  as  is  generally  the  case,  the  period 
requisite  to  bar  a  right  of  entry  upon  lands,  and  treating  the 
mortgage  as  a  conveyance  of  land.  In  Maine,  Rhode  Island, 
Massachusetts,  New  Jersey,  New  York,  Georgia,  Indiana,  Dela- 
ware, South  Carolina,  Wisconsin,  and  Dakota,  the  mortgage  is 
barred  in  twenty  years  from  the  time  when  the  obligation  it  is 
given  to  secure  matures.  In  Vermont,  Connecticut,  Kentucky, 
Virginia,  and  Kansas,  the  limitation  is  fifteen  years.  In  Ala- 
bama, Iowa,  Oregon,  North  Carolina,  West  Virginia,  Texas, 
Nebraska,  Missouri,  Minnesota,  and  New  Mexico,  ten  years;  in 
Tennessee,  Florida,  and  Utah,  seven  years;  in  Colorado,  six 
years;  in  Arkansas,  California,  and  Idaho,  five  years;  in  Nevada, 
four  years;  in  Montana,  three  years.  Where  a  creditor  has  an 
election  of  remedies  for  the  same  debt,  one  of  which  is  barred 

1  Appendix,  Mississippi. 
'Appendix,  Mississippi. 

3  Appendix,  Minnesota. 

4  Appendix,  North  Carolina. 
1  Id. 

•Appendix,  California. 
1  Rhode  Island ,  ( >rc^on. 
'  Appen  lix ,  New  1 1 ampshire 
•Id. 


§  224.]         MORTGAGOR  AND  MORTGAGEE.  507 

and  the  other  not,  he  may  maintain  an  action  on  the  one  not 
barred.  Thus,  where  a  note  is  given  as  collateral  security  for  an 
account,  an  action  may  be  maintained  upon  the  note,  although 
the  statute  has  run  against  the  account 1  and  the  same  rule  pre- 
vails where  there  is  a  note  and  mortgage.  The  note  may  be 
barred,  but  an  action  to  recover  the  amount  secured  by  the  mort- 
gage may  be  maintained  until  the  statute  has  run  against  that. 

Sec.  224.  When  Statute  begins  to  run  in  Favor  of  or  against  the 
Mortgagor.  — The  statute  begins  to  run  in  favor  of  the  mortgagor 
from  the  time  when  the  mortgagee's  right  of  action  accrues 
against  him,  under  the  mortgage,2  or,  in  other  words,  from  the 
time  of  condition  broken,  so  that  the  mortgagee  may  foreclose 
fully;3  and,  as  the  proceedings  are  in  rem,  the  fact  that  the 
defendant  is  out  of  the  State  during  the  whole  period  does  not 
save  the  mortgage  from  the  operation  of  the  statute.4  When 
the  mortgagee  enters  into  the  possession  of  the  mortgaged 
premises  for  condition  broken,  the  statute  begins  to  run  against 
the  mortgagor  from  the  time  of  such  entry.5  (a)     But  if  the  mort- 

1  Shipp  v.  Davis,  78  Ga.  201. 
s  Nevitt  v.  Bacon,  32  Miss.  212. 

3  Wilkinson  v.  Flowers,  37  Miss.  579;  Trayser  v.  Trustees,  39  Ind.  556;  Hale 
v.  Pack,  10  W.  Va.  145;  Gladvvyn  v.  Hitchman,  2  Vern.  134;  Gilleti  v.  Balcom, 
6  Barb.  (N.  Y.)  370. 

4  Anderson  v.  Baxter,  4  Greg.  105. 

8  Bailey  v.  Carter,  7  Ired.  (N.  C.)  Eq.  2S2;  Montgomery  v.  Chadvvick,  7  Iowa, 
114;  Waldo  v.  Rice,  14  Wis.  286;  Hubbell  v.  Sibley,  50  N.  Y.  463;  Miner  v. 
Beckman,  id.  337;  Peabody  v  Roberts,  47  Barb.  (N.  Y.)  41;  Knowlton  v. 
Walker,  13  Wis.  264. 

(a)  In  Massachusetts  the  possession  from   the  statutory  three  years,   while 

of  the  mortgaged  premises  by  the  mort-  the  mortgagee  is  not  allowed  the  cor- 

gagor,  and   those  claiming  under  him,  responding  benefit  with  regard  to  the 

for  more  than  twenty  years  after   the  last  day.     Jager  v.  Vollinger,  174  Mass. 

•debt   has    matured,    and    without   any  521,  523. 

recognition    thereof,  affords  presump-  In  Missouri,  it  is  held  that,  in  order 

tive    proof    of    payment.      Kellogg    v.  to  bar  a   foreclosure,  there    must  have 

Dickinson,  147  Mass.  432,  437,  1  L.  R.  been,    for  the   required  period,  an  ad- 

A.  346,  and  note.     And  after  an  entry  verse  possession  of  the  property;   that 

of  foreclosure,  the  mortgagor  and  those  the  relation  of  the  mortgagor  and  morl- 

claiming  under  him  become  tenants  at  gagee,  being  in  its  inception  friendly, 

sufferanceof  the  mortgagee,  and  during  as  created  by  their  voluntary  contract, 

the  next  three  years  they  are  assumed  is    presumed   so   to   continue  until  the 

to   hold  under  him,  in  the  absence  of  mortgagor   by  his  acts  or  declarations 

any   evidence   of   an   adverse  holding,  repudiates  the  mortgage,  of   which  the 

Cunningham  v.  Davis,  175  Mass.    213,  mortgagee  must  have  notice  enough,  at 

•222.     In  Massachusetts  it  is  settled  in  least,  to  put  him  upon  inquiry.     Eyer- 

favor  of  the  mortgagor  that  the  day  of  mann  v.  Piron,  151  Mo.  107.  117.     Also, 

the  entry  to  foreclose  is  to  be  excluded  that  a  grantee  of  a  mortgagor  with  con- 


508  STATUTES   OF   LIMITATION.  [ClIAP.   XVIII. 

gagee  enters  under  an  agreement  expressed  in  the  mortgage,  or 
entered  into  subsequently,  that  he  shall  take  possession  and  reim- 
burse himself  the  mortgage  debt  from  the  rents  and  profits,  the 
statute  does  not  begin  to  run  against  the  mortgagor  until  the 
debt  is  fully  satisfied  from  such  rents  and  profits,  or  he  asserts 
title  in  himself,  and  gives  the  mortgagor  distinct  notice  thereof.1 
But  if  the  agreement  is  that  the  mortgagee  shall  enter  and  have 
the  rents  and  profits  for  a  distinct  or  definite  period,  the  statute 
will  not  begin  to  run  against  the  mortgagor  until  such  period  has 
elapsed;2  as  in  such  case  a  court  of  equity  would  restrain  the 
mortgagor  from  setting  up  a  legal  title  to  the  land  in  himself,  or 
from  disturbing  the  mortgagee  in  his  possession  until  the  debt  is 
satisfied.3  When  a  mortgage  is  payable  by  instalments,  the 
statute  attaches  to  each  instalment  as  it  becomes  due,  but  the 
mortgagor's  possession  does  not  become  adverse  until  the  last 
instalment  has  matured.4  Nothing  short  of  actual  possession  by 
the  mortgagee,  continued  for  the  entire  statutory  period,  without 
recognition  of  the  right  of  the  mortgagor  to  redeem,  will  operate 
to  convert  his  estate  into  an  absolute  title  in  equity,5  and  mere 
constructive  possession  is  not  sufficient ; 6  nor  is  payment  of  taxes 
for  the  statutory  period,  without  actual  possession,  enough  to 
cut  off  the  mortgagor's  right  to  redeem;7  and  the  rule  is  not 
varied  by  the  circumstance  that  the  lands  are  wild  and  uncleared.* 
Where  a  right  to  redeem  is  not  cut  off  by  foreclosure  proceedings, 
it  seems  that  the  statute  does  not  begin  to  run  in  favor  of  the 

1  Frink  v.  Le  Roy,  49  Cal.  315;  Anding  v.  Davis,  3S  Miss.  574. 

2  Frink  v.  Le  Roy,  supra. 
3Id. 

*  Parker  v.  Banks,  79  N.  C.  4S0. 

5  Miner  v.  Beekman,  50  N.  Y.  337;  Demarest  v.  Wynkoop,  3  Johns.  (N.  Y.) 
Ch.  129. 

6Slee  v.  Manhattan,  1  Paige  (N.  Y.)  Ch  48;  Moore  v.  Cable,  1  Johns.  (N.  Y.) 
Ch.  385. 

1  Bollinger  v.  Chouteau,  20  Mo.  89. 

8  Moore  v.  Cable,  supra. 

structive  notice  of  the  mortgage  is  in         In   England,  as   to   the   effect  of   the 

no   better  situation   than   his   grantor,  statute  1  Vict.,   c.  28,  by  which  a   pay- 

and  can  only  avail  of  the  presumption  ment  of  interest  upon  a  mortgage  gives 

of    payment   from    lapse  of  time  when  a  new  starting  point  for  the    running 

lhe   mortgagor  could  do  so,  under  the  of  limitation  against  a  mortgagee  out 

same    circumstances.      Ibid;    Lewis  v.  of    possession,    see    7    Law    Quarterly 

Schvvenn,  93  Mo.  26.  Rev.  43. 


■§  225.]  MORTGAGOR   AND    MORTGAGEE.  509 

purchaser  until  the  expiration  of  the  period  fixed  in  the  decree  for 
redemption.1 

SEC.  225.  Right  of  Redemption  barred,  when. — When  a  mort- 
gagee has  been  in  possession  of  mortgaged  premises  after  con- 
dition broken,  for  the  period  requisite  to  acquire  a  title  to  lands 
by  adverse  possession,  without  the  payment  to  him  of  any  part 
of  the  principal  or  interest  due  upon  the  mortgage,  in  the  absence 
of  any  statute  fixing  the  period  within  which  the  mortgagor  may 
redeem,  courts  of  equity,  acting  in  analogy  to  the  statute,  treat 
the  lapse  of  such  period  as  prima  facie  a  bar  to  his  right  to 
redeem,2  unless  the  mortgagor  or  those  claiming  under  him,  dur- 
ing that  period,  were  under  some  of  the  disabilities  specified  in 
the  statute  as  suspending  the  statute,  in  which  case  proper  allow- 
ance is  made  therefor,3  which,  in  the  absence  of  any  provision  in 
the  statute  itself,  is  usually  ten  years  after  the  removing  of  such 
disabilities  in  analogy  to  the  Stat.  21  James  I.;4  but  if  the 
statute  makes  specific  provision  as  to  the  period  within  which 
action  may  be  brought  after  the  removal  of  such  disabilities,  such 
statutory  period  would  be  adopted.  As  we  have  already  seen 
in  New  York,  New  Jersey,  Mississippi,  Minnesota,  and  North 
Carolina,  by  statute,  the  right  of  redemption  is  barred  in  ten 
years,  in  Kentucky  in  fifteen,  and  in  California,  in  five  years.  In 
all  the  other  States  the  right  is  left  subject  to  the  common-law 
rules  which  have  grown  up  under  the  statutes.  But,  as  has  been 
stated,  this  bar  is  only  prima  facie,  and  in  order  to  be  operative 
the  mortgagee's  possession  must  have  been  adverse  during  the 
respective  periods;5  and  if  his  possession  is  consistent  with  the 
rights  of  the  mortgagor,  this  prima  facie  bar  does  not  attach,6 

1  Rockwell  v.  Servant,  63  111.  424. 

5  Barron  v.  Martin,  19  Ves.  397;  Crawford  v.  Taylor,  42  Iowa,  260;  Robinson 
■v.  Fife,  3  Ohio  St.  551;  Demarest  v.  Wynkoop,  3  Johns.  (N.  Y.)  Ch.  129;  Blake 
v.  Foster,  2  B.  &  B.  402;  Montgomery  v.  Chadwick,  7  Iowa,  114;  Howland  v. 
Shurtleff,  2  Met.  (Mass.)  26;  Dexter  v.  Arnold,  1  Sumner  (U.  S.)  109;  Hoffman 
v.  Harrington,  33  Mich.  392;  Slee  v.  Manhattan  Co.,  1  Paige  (N.  Y.)  Ch.  48; 
Hall  v.  Dsnckla,  28  Ark.  506;  Phillips  v.  Sinclair,  20  Me.  269;  Slicer  v.  Bank 
of  Pittsburg,  16  How.  (U.  S.)  571;  Knowlton  v.  Walker,  13  Wis.  264;  Gunn  v. 
Brantley,  21  Ala.  633. 

3  Price  v.  Copner,  1  S.  &  S.  347;  Beckford  v.  Wade,  17  Ves.  87;  White  v. 
Ewer,  2  Vent.  340;  Demarest  v.  Wynkoop,  supra, 

4  Lamar  v.  Jones,  3  H.  &  McH.  (Md.)  328. 

•  Hyde  v.  Dallaway,  2  Hare,  528. 

*  Wallen  v.    Huff,  5    Humph.   (Tenn.)  91;    Rockwell   v.   Servant,  64   III.  424; 


510  STATUTES   OF   LIMITATION.  [CHAP.   XVIII. 

as,  if  he  recognizes  the  mortgagor's  right  to  redeem  by  accept- 
ing a  part  payment  of  the  principal  or  interest  upon  the  mort- 
gage,1 or  acknowledging  such  right,  by  recognizing  the  mortgagee 
as  such,  and  the  commencement  of  foreclosure  proceedings,  either 
under  a  statute  or  in  equity,  is  sufficient  to  let  the  mortgagor  in 
to  redeem;2  or,  indeed,  any  acknowledgment  in  writing  sufficient 
to  take  an  ordinary  debt  out  of  the  operation  of  the  statute 
would  be  sufficient;3  but  a  mere  parol  acknowledgment  would 
not  be  sufficient,  as  now  in  nearly  all  the  States  and  territories  of 
this  country  except  those  previously  named,  as  in  England,  an 
acknowledgment  of  a  debt  to  be  sufficient  must  be  in  writing, 
signed  by  the  person  to  be  charged.  Where  there  are  two  or 
more  mortgagees,  all  must  sign  the  acknowledgment,  as  only 
those  who  do  sign  will  be  bound  thereby4  in  those  States  where 
provision  is  made  that  the  acknowledgment  of  one  joint  con- 
tractor, etc.,  shall  not  be  binding  upon  the  others.  The  acknowl- 
edgment, to  be  operative,  must  be  made  by  and  to  the  proper 
party.  It  is  not  the  naked  possession,  but  the  nature  of  it,  which 
determines  his  right.5  The  possession  must  not  only  be  adverse, 
but  it  must  also  be  actual;  and  mere  constructive  possession  will 
not  avail,6  nor  will  an  occasional  occupation  be  sufficient.  It 
must  be  continuous  and  without  interruption,  and  adverse  to  the 
mortgagor's  right  to  redeem.  Payment  of  taxes  on  wild  land  of 
itself  does  not  amount  to  a  possessory  act,7  but  accompanied  with 
actual  possessory  acts,  such  as  the  premises  are  susceptible  of, 
and  which  constitute  a  badge  of  ownership,  it  would  doubtless 
be  held  sufficient. 

Waldo  v.  Rice,  14  Wis.  286;  Humphrey  v.  Hurd,  26  Mich.  44;  Crawford  v.  Tay- 
lor, 42  Iowa,  260;  Yarbrough  v.  Newell,  10  Verg.  (Tenn.)  376;  Quint  v.  Little, 
4  Me.  495;  Kohlheim  v.  Harrison.  34  Miss.  457;  Frink  v.  Le  Roy,  49  Cal.  315; 
Teulon  v.  Curtis,  1  Younge,  610;  Morgan  v.  Morgan,  10  Ga.  297;  Knowlion  z>. 
Walker,  13  Wis.  264. 

1  Knowlton  v.  Walker,  supra. 

!  Calkins  v.  Isbell,  20  N.  Y.  147;  Jackson  v.  Slater,  5  Wend.  (N.  Y.)  295;  Rob- 
inson •).  Fife,  supra;  Cutts  v.  York  Mfg.  Co.,  18  Me.  140;  Jackson  v.  De  Lancey, 
11  Johns.  (X.  Y.)  365. 

"Stansfield  v.  Hobson,  3  De  G.  M.  &  G.  620;  Price  v.  Cover,  1  S.  &  S.  3^7: 
Lak:-  v.  Thomas,  3  Ves.  17. 

*  Richardson  v.  Young,  L.  R.  10  Eq.  Cas.  275. 

*  Reynolds  v.  Green,  10  Mich.  355;  Robinson  v.  Fife,  3  Ohio  Si.  551;  Blenthen 
■v.  Dwinal,  35  Me.  556;   Hurd  v.  Coleman,  42  id.  182. 

1  Milnf-r  7'.  Beekman,  50  N.  Y.  337. 
1  Bollinger  v.  Chouteau,  20  Mo.  89. 


§§226,227-]        MORTGAGOR   AND    MORTGAGEE.  5 1 1 

SEC.  226.  When  Mortgagor  is  in  Possession  of  a  Part  of  the 
Premises.  —  When  the  mortgagor  is  in  possession  of  a  part  of  the 
premises,  and  the  mortgagee  is  in  possession  of  the  other  part,  it 
seems  that  no  length  of  time  will  bar  the  mortgagor's  right  to 
redeem,  because,  so  long  as  the  right  to  redeem  any  part  of  the 
estate  remains,  it  exists  as  to  the  whole  under  the  rule  that, 
except  in  special'instances,  there  can  be  no  redemption  of  separate 
parts  of  the  mortgaged  estate,1  and  the  same  rule  prevails  when 
the  mortgagor  is  constructively  in  possession.2 

SEC.  227.   Liability  of  Mortgagee  in  Possession If  a  bill  to 

redeem  is  brought  by  a  mortgagor  before  the  mortgagee  has  been 
in  possession  for  the  period  requisite  to  bar  the  mortgagor's 
right,  he  will  be  compelled  to  account  for  the  rents  and  profits  of 
the  estate  during  his  occupancy.  He  is  not  obliged  to  lay  out 
money  any  further  than  to  keep  the  estate  in  necessary  repair; 
but  on  a  bill  to  redeem  he  will  be  made  to  account  for  all  loss  and 
damage  occasioned  by  his  gross  negligence  in  respect  of  bad  culti- 
vation and  non-repair.3  He  will  also  be  charged,  not  only  for  ah 
rents  received,  but  also  for  all  rents  which  but  for  his  wilful 
neglect"  or  default  he  might  have  received.4  A  mortgagee  in  pos- 
session has  been  held  not  chargeable  as  for  wilful  default  in 
declining  to  defend  an  action  of  replevin  brought  by  the  owner 
of  goods  distrained  on  the  premises  by  such  mortgagee.5  If  he 
has  expended  any  sum  in  supporting  the  right  of  the  mortgagor 
to  the  estate,  where  his  title  has  been  impeached,  the  mortgagee 
may  certainly  add  that  to  the  principal  of  his  debt ;  and  it  shall 
carry  interest.  Where  a  mortgagee  has  been  put  to  expense  in 
defending  the  title  to  the  estate,  the  defense  being  for  the  benefit 
of  all  parties  interested,  he  is  entitled  to  charge  such  expenses 
against  the  estate;  but  if  his  title  to  the  mortgage  only  is  dis- 
puted, the  costs  of  his  defense  should  not  be  borne  by  the  estate 
as  against  parties  interested  in  the  equity  of  redemption,  unless 
they  can  be  shown  to  have  concurred  or  assisted  in  the  litigation.6 

1  Rakestraw   v.  Brewer,  Sel.  Cas.  temp.  King,  55;  Burke  v.  Lynch,  2  B.  &  B 
426.     But  see  Lake  v.  Thomas,  3  Ves.  17. 

2  Archbold  v.  Scully,  9  H.  L.  360;   Drummond  v.  Sant,  L.  R.  6  Q.  B.  763. 

3  Wragg  v.  Denham,  2  Y.  &  C.  117;  Fisher,  §§  got-gog;  Wood's  Landlord  & 
Tenant,  igS-igg. 

4  Fisher,  §§  873,  894,  8g5;  Brandon  v.  Brandon,  10  VV.  R.  287. 

5  Cocks  v.  Gray,  1  Gift.  77. 

6  Parker  v.  VVatkins,  ]  Johns.  133. 


512  STATUTES   OF   LIMITATION.  [CHAP.   XVIII. 

If  the  estate  lies  at  such  a  distance  that  the  mortgagee  must 
employ  an  agent  to  collect  the  rents,  what  he  pays  to  the  agent 
shall  be  allowed;  but  not  where  he  does  or  may  receive  the  rents 
himself.  It  is  the  settled  practice  in  the  Court  of  Chancery  not 
to  take  an  account  against  a  mortgagee  in  possession  with  annual 
rests,  where,  at  the  time  of  his  entering  into  possession,  there  is 
an  arrear  of  interest.1  A  mortgagee  of  leaseholds  may  take  pos- 
session, even  where  there  is  no  arrear  of  interest  due,  under  cir- 
cumstances which  may  not  render  him  liable  to  account  with 
annual  rests;  as  where  he  enters  in  order  to  prevent  a  forfeiture 
for  non-payment  of  ground-rent  or  for  non-insurance.2  The 
Court  of  Chancery  will  not  suffer,  in  a  deed  of  mortgage,  any 
stipulation  to  prevail,  that  the  estate  should  become  an  absolute 
purchase  in  the  mortgagee  upon  any  event  whatsoever.3  A  court 
of  common  law  has  no  power  to  compel  a  reconveyance  of  a 
mortgaged  estate  after  payment  of  the  mortgage  debt,  interest, 
and  costs.4  The  statute  does  not  run  against  the  mortgagor's 
right  to  have  an  account,  until  his  right  to  redeem  is  lost. 

SEC.  228.  "Welsh  Mortgages.  —  Welsh  mortgages  are  effected 
by  a  conveyance  of  property  to  a  mortgagee,  coupled  with  occu- 
pation by  him  on  the  understanding  that  he  is  to  pay  himself  the 
interest  of  the  money  lent  by  receiving  the  profits  of  the  land. 
The  land  may  be  redeemed  at  any  time  on  repayment  by  the 
mortgagor  of  the  money  lent;  and  the  mortgagee  cannot  fore- 
close,5 though  now  equity  would  probably  compel  an  account 
against  the  mortgagee.6  The  reason  for  this  is,  that  the  receipt 
of  the  rents  and  profits  in  reduction  of  the  debt  operates  as  a 
constant  renewal  of  the  mortgage.7  If  a  mortgagee  after  repay- 
ment of  the  mortgage  debt  continues  to  hold  the  property  twenty 
years,    the   mortgagor  will,    it  appears,    be  barred   his  right  to 

1  Nelson  v.  Booth,  3  De  G.  &  J.  119. 

2  Patch  v.  Wild,  30  Beav.  99. 

3  Bonham  v.  Newcomb,  1  Vern.  8,  232;  Toomes  v.  Conset,  3  Atk.  261;  Vernon 
v.  Bethell,  2  Eden,  no;   Fisher,  §  126;  Powell  on  Mortgages,  116  a,  note  (H). 

•"Sorely  v.  Gorely.  1  H.  &  N.  144. 

•Talbot  v.  Braddil,  1  Vern.  395;  Lawley  v.  Hooper,  3  Atk.  280;  Yates  v. 
Hambly,  2  id.  237. 

•  Fulthrope  v.  Foster,  r  Vern.  477. 

1  Orde  v.  Heming,  1  Vern.  418;  Marks  v.  Pell,  supra;  Fenwick  v.  Reed,  1 
Mer.  114. 


§  229.]  MORTGAGOR   AND    MORTGAGEE.  513 

recover  it.1  Any  arrangement  for  securing  repayment  of  a  loan 
by  demise,  or  granting  annuities  possessing  characteristics  similar 
to  those  above  mentioned,  is  considered  in  the  nature  of  a  Welsh 
mortgage.2  Where  no  time  of  payment  is  fixed,  as  is  the  case  in 
this  class  of  mortgages,  it  is  perhaps  true  that  a  redemption  will 
be  decreed  at  any  time;3  but  this  right  may  be  lost  by  a  subse- 
quent agreement  of  the  parties;4  so,  too,  by  an  express  notice 
given  by  the  mortgagee  to  the  mortgagor  that  he  claims  adversely.5 

SEC.  229.  Presumption  of  Payment.  Effect  of  Part  Payment. — 
Courts  of  equity,  although  not  strictly  bound  by  the  statute  of 
limitations,  except  in  those  States  where  express  provision  to  that 
effect  is  made,  nevertheless,  as  we  have  seen,6  usually  adopt  a 
period  in  analogy  to  the  statute  as  sufficient  to  raise  a  presump- 
tion against  the  right  sought  to  be  enforced ;  and  where  it  is 
sought  to  enforce  a  mortgage  after  the  lapse  of  the  statutory 
period,  when  the  mortgagor  has  been  in  possession  and  there  has 
been  no  payment  thereon  within  that  period,  or  express  recog- 
nition of  the  rights  of  the  mortgagee,  the  courts  will  presume  that 
the  debt  has  been  paid  and  the  mortgage  lien  satisfied;7  and  this 

1  Fenwiclc  v.  Reed,  1  Mer.  119. 

'Teulon  v.  Curtis,  1  Younge,  610. 

3Orde  v.  Heming,  1  Vern.  418;  Fenwick  v.   Reed,  1  Mer.  114. 

4  Hartpole  v.  Walsh,  5  Bro.  P.  C.  267. 

6  Talbot  v.  Braddil,  1  Vern.  395;  Yates  v.  Hambly,  2  Atk.  360;  Alderson  v. 
White,  2  De  G.  &  J.  97;   Longuet  v.  Scawen,  1  Ves.  403. 

6  See  Chap.  VI.,  Equitable  Actions. 

'  Reynolds  v.  Green,  10  Mich.  355;  Bacon  v.  Mclntire,  8  Met.  (Mass.)  87; 
Martin  v.  Bowker,  19  Vt.  526;  Hoffman  v.  Harrington,  33  Micb.  392;  Newcomb 
v.  St.  Peter's  Church,  2  Sandf.  (N.  Y.)  Ch.  636;  Donald  v.  Sims,  3  Ga.  383;  Mc- 
Nair  v.  Lot,  34  Mo.  285.  The  possession  of  the  mortgagor  before  condition 
broken  is  not  hostile  to  that  of  the  mortgagee,  but  after  that  event,  if  no  pay- 
ments are  made  upon  the  mortgage  for  the  entire  statutory  period,  the  pre- 
sumption that  the  mortgage  has  been  satisfied  is  well  sustained,  although  until 
the  entire  statutory  period  has  elapsed  the  mortgagee  is  treated  as  constructively 
in  possession.  Atkinson  v.  Patterson,  46  Vt.  750;  Doe  v.  Williams,  5  Ad.  & 
El.  291;  Hall  v.  Doe,  5  B.  &  Aid.  687;  Pitzer  v.  Burns,  7  W.  Va.  63;  Howland 
■v.  Shurtleff,  2  Met.  (Mass.)  26;  Martin  v.  Jackson,  27  Penn.  St.  504;  Bates  v. 
Conrow,  11  N.  J.  Eq.  137;  Boyd  v.  Beck,  29  Ala.  703;  Sheafe  v.  Gerry,  18  N. 
H.  245;  Higginson  v.  Mein,  4  Cranch  (U.  S.)  415;  Benson  v.  Stewart,  30  Miss. 
49;  Roberts  v.  Littlefield,  4S  Me.  61;  Chick  v.  Rollins,  44  id.  104;  Inches  v. 
Leonard,  12  Mass.  379;  Drayton  v.  Marshall,  Rice  (S.  C.)  Eq.  373;  Downs  v. 
Sooy.  28  N.  J.  Eq.  55.  And  a  less  period  than  that  fixed  by  the  statute  for  bar- 
ring similar  rights  at  law  will  not  be  sufficient  to  raise  a  presumption  of  pay- 
ment. Boon  v.  Pierpont,  28  N.  J.  Eq.  7. 
[stats,  of  lim.  —  33.] 


514  STATUTES   OF   LIMITATION.  [CHAP.   XVIIL. 

furnishes  a  good  defense  to  an  action  of  ejectment  or  a  bill  to- 
foreclose  brought  by  the  mortgagee.1  This  presumption  is  not 
irrebuttable,  but  may  be  overcome  by  proof  of  a  part  payment  of 
principal  or  interest,  or  a  direct  recognition  of  the  mortgagee's, 
rights,  sufficient  under  the  statute  to  amount  to  an  acknowledg- 
ment,2 which,  in  those  States  where  parol  acknowledgments  are 
ineffectual,  the  acknowledgment  or  recognition  must  be  in  writ- 
ing and  signed  by  the  mortgagor;  and  if  there  are  two  of  them, 
both  must  sign   it,  or  it  will  be  ineffectual   to   bind    the   entire 

'Jackson  v.  Pratt.  10  Johns  (N..  Y.)  3S1;  Jackson  v.  Wood,  12  id.  242;  How- 
land  v.  Shurtleff,  supra;  Martin  v.  Bowker,  19  Vt.  526;  Hughes  v.  Edwards,  9 
Wheat.  (U  S.)4gS;  Reynolds  v.  Green,  ro  Mich.  355;  Field  v.  Wilson,  6  B.  Men. 
(Ky.)  479;  Hoffman  v.  Harrington,  33  Mich.  892;  Wilkinson  v.  Flowers,  37  Miss. 
579;   McNair  v.  Lot,  34  Mo.  285. 

5  Jarvis  v.  Albro,  67  Me.  310.  And  where  the  mortgagee  is  in  possession,  the 
mortgagor  may  avail  himself  of  a  part  payment  to  save  the  statute  as  against 
him.  Ford  v.  Ager,  2  H.  &  C.  279;  Palmer  v.  Eyre,  17  Q.  B.  366.  This  pre- 
sumption may  be  overcome  by  circumstances  which  fairly  overthrow  it. 
Snavely  v.  Pickle,  29  Gratt.  (Va.)  27;  Brobst  v.  Brock,  10  Wall.  (U.  S.)  519;  Leman 
v.  Newham,  1  Ves.  51;  Hale  v.  Pack,  10  W.  Va.  145.  Where  a  mortgage  was 
executed,  in  1706,  to  a  resident  of  Great  Britain,  who  remained  there,  and  never 
was  in  possession  of  the  land  mortgaged,  and  the  mortgagor  had,  in  1741, 
devised  the  lands  to  his  sons  —  held,  that  no  presumption  could  arise  that  the 
mortgage  had  been  satisfied,  before  the  year  17S0,  in  favor  of  a  person  with  fifty 
years'  exclusive  possession,  who  did  not  derive  his  title  under  the  mortgage. 
Owings  v.  Norwood,  2  Har.  &  J.  (Md.)  96.  When  a  morlgagor  has  retained 
possession  of  the  mortgaged  premises  for  more  than  twenty  years  after  the 
execution  of  the  mortgage,  but  has  acknowledged  the  debt  and  paid  interest 
upon  it  within  twenty  years  there  is  no  presumption  that  the  debt  is  discharged. 
Howard  v.  Hildreth,  iS  N.  H.  105;  Wright  v.  Eaves,  10  Rich.  (S.  C.)  Eq.  5S2.  But 
unexplained  possession  of  mortgaged  premises  for  less  than  twenty  years  by 
the  mortgagor  may  be  left  to  the  jury  in  connection  with  the  partial  payments 
and  other  evidence,  as  tending  to  show  that  the  debt  was  fully  paid.  Gould  v. 
White,  26  N.  H.  178.  The  retention  of  mortgaged  property  after  the  law-day 
has  passed  is  not  prima  facie  evidence  of  fraud,  nor  does  it  authorize  a  legal 
presumption  of  payment.  Steele  v.  Adams,  21  Ala.  534;  Clark  v.  Johnson,  5 
Day  (Conn.)  373.  But  a  mortgage  given  to  secure  the  title  to  land  sold  and 
conveyed  will  be  presumed  extinguished  after  a  lapse  of  from  thirty  to  fifty-six 
years,  and  the  enjoyment  of  the  land  under  the  title  conveyed.  Murray  v.  Fish- 
back,  5  B.  Mon.  (Ky.)  403;  Inches  v.  Leonard,  12  Mass.  379.  Mere  lapse  of 
time  raises  no  presumption  in  favor  of  a  stranger  against  the  title  of  a  mort- 
e;  and  in  this  case  the  stranger  was  in  adverse  possession  at  the  com- 
mencement of  the  action.  Appleton  v.  Edson,  8  Vt.  241.  But  as  between  the 
parlies,  the  presumption  of  the  payment  of  a  mortgage  becomes  absolute  after 
the  lapse  of  fifteen  years,  if  there  is  no  entry,  or  payment  of  interest;  and  being 
a  presumption  of  law,  it  is  in  itself  conclusive,  unless  encountered  by  distinct 
proof.      Whitney  v.  French,  25  Vt.  663. 


§  230.]  MORTGAGOR   AND    MORTGAGEE.  515 

estate.1  Mere  silence  on  the  part  of  the  mortgagor,  where 
demands  for  payment  are  made  upon  him  by  the  mortgagee,  does 
not  of  itself  amount  to  such  a  recognition  of  the  mortgagee's  rights 
as  will  save  the  statute.3  Any  act  of  the  mortgagor  which 
operates  to  keep  the  mortgage  debt  on  foot,  also  operates  to  keep 
up  the  mortgage  lien,  as  an  acknowledgment  of  the  debt  by  the 
mortgagor3  in  the  mode  and  with  the  formalities  required  by  law. 
A  part  payment  of  principal  or  interest  made  by  the  mortgagor 
or  his  agent  revives  the  mortgage,  and  gives  it  a  new  lease  of 
validity  from  the  date  of  such  payment;  and  a  payment  by  one 
of  two  or  more  mortgagors,  while  the  mortgage  is  still  operative, 
it  seems,  will  keep  up  the  right  of  entry  against  all.*(«)  But,  in 
order  to  have  that  effect,  the  payment  must  be  made  while  the 
mortgagor  owns  the  equity  of  redemption,  and  a  payment  made 
after  he  has  parted  with  the  same  does  not  revive  or  keep  on  foot 
the  mortgage  security,  as,  from  the  time  when  he  parts  with  his 
interest  in  the  land,  his  power  to  bind  it  in  any  manner  is  gone, 
either  as  to  past  or  future  debts.  The  payment  of  interest  on  a 
mortgage  debt  by  the  mortgagor  repels  the  presumption  of  pay- 
ment arising  from  the  lapse  of  time.5 

SEC.  230.  Effect  of  Acknowledgment  or  New  Promise  upon  the 
Mortgage.  —  So  long  as  the  debt  which  a  mortgage  is  given  to 

1  Richardson  v.  Younge,  L.  R.  6  Ch.  47S.  In  Cheever  v,  Perley,  11  Allen 
(Mass.)  584,  it  was  held  that  this  presumption  is  not  conclusive,  but  that,  where 
parol  evidence  is  relied  upon  to  control  it,  it  should  clearly  show  some  positive 
act  of  unequivocal  recognition  of  the  debt  within  the  statutory  period. 

2  Cheever  v.  Perley,  11  Allen  (Mass.)  584. 

3  See  Hough  v.  Bailey,  32  Conn.  289;   Hart  v.  Boyd,  54  Miss.  547. 

4  Pears  v.  Laing,  L.  R.  12  Eq.  Cas.  41;  Roddam  v.  Morley,  1  De  G.  A  J.  1. 
Payments  of  interest  made  by  tenant  for  life  have  been  held  sufficient  as 
against  the  remainder-man.  Toft  v.  Stephenson,  1  De  G.  M.  &  G.  28;  Pears  v. 
Laing,  L.  R.  12  Eq.  51;  Roddam  v.  Moriey,  supra.  So  a  payment  by  the  mort- 
gagor's solicitor.  Ward  v.  Carter,  L.  R.  1  Eq.  29.  But  in  order  to  make  a  pay- 
ment by  a  person  other  than  the  mortgagor  operative  to  keep  the  mortgage  on 
foot,  either  express  authority  must  be  established,  or  the  payment  must  be 
made  by  a  person  so  situated  in  reference  to  the  property  and  the  mortgagor 
that  the  law  will  imply  authority.     Chinnery  v.  Evans,  n  H.  L.  Cas.  115. 

5  Hughes  v.  Blackwell,  6  Jones  (N.  C.)  Eq.  73;  Howard  v.  Hildreth,  18  N.  H. 
105;  Wright  v.  Eaves,  10  Rich.  (S.  C.)  Eq.  582. 

{a)  On  a  testator's  simple  or   mort-  keep  alive  the  right  of  action  against 

gage    contract    debt  carrying    interest,  the    remaindermen.      In   re    Hollings- 

payment  of  the   interest  by  a  devisee  head,  37  Ch.  D.  651;   Barclay  v.  Owen, 

for  life  so  acknowledges  the  debt  as  to  60  L.  T.  220,  222. 


5 16  STATUTES   OF   LIMITATION.  [CHAP.    XVIII. 

secure  it  kept  on  foot,  the  mortgage  lien  remains  in  full  force. 
Therefore,  any  acknowledgment  or  promise  of  the  debtor  suffi- 
cient to  prevent  the  statute  from  running  against  the  debt,  equally 
prevents  the  statute  from  running  upon  the  mortgage;1  and,  as 
we  have  seen,  such  also  is  the  effect  of  a  part  payment,  either  of 
principal  or  interest  made  upon  the  mortgage.2  But  where  the 
rights  of  subsequent  mortgagees  intervene,  or  where  the  mort- 
gagor has  sold  the  premises,  an  acknowledgment  or  payment 
afterwards  made  by  the  mortgagor  after  the  statute  bar  has 
become  complete,  revives  the  mortgage  so  as  to  defeat  any  of  the 
rights  of  such  subsequent  mortgagee  or  grantee.3  But  so  far  as 
his  own  interests  are  concerned  he  may  revive  the  mortgage  by 
such  acts,  but  not  so  as  to  impair  or  defeat  the  rights  of  other 
parties  who,  previous  to  such  acts,  acquired  an  interest  in  the 
premises.4  Where  a  subsequent  grantee  or  mortgagee  agrees  to 
pay  the  mortgage,  and  the  mortgagor,  either  by  suit  or  otherwise, 
insists  upon  his  performance  of  this  contract,  a  payment  of  either 
principal  or  interest  made  by  such  grantee  or  mortgagee  upon 
the  mortgage,  will  keep  it  on  foot  not  only  as  against  him,  but 
also  as  against  his  grantor  or  mortgagor.5  It  seems  that,  when 
the  statute  has  run  upon  a  prior  mortgage,  the  holder  of  a  subse- 
quent mortgage  is  entitled  to  have  the  prior  mortgage  cancelled 
as  against  a  mortgagee  out  of  possession,  and  a  court  of  equity, 
upon  proper  proceedings  to  that  end,  will  direct  its  cancellation 
on  the  ground  of  such  bar.6 

1  Hart  v.  Boyd,  54  Miss.  547.  See  Cheever  v.  Perley,  n  Allen  (Mass.)  584; 
Jarvis  v.  Albro,  67  Me.  310,  as  to  the  effect  of  acknowledgment  in  repelling 
presumption  of  payment.  In  California,  it  is  held  that  after  the  rights  of  third 
parties  have  intervened,  the  mortgagor  cannot,  by  any  act  of  his,  either  suspend 
the  running  of  the  statute,  or  revive  the  debt  after  the  statute  has  run  upon  it. 
Wood  v.  Goodfellow,  43  Cal.  185;  Sichele  v.  Carrillo,  42  id.  493;  Lent  v.  Shear, 
26  id.  361;  Barber  v.  Babel,  36  id.  11.  But  this  doctrine,  so  far  as  the  mort- 
gagor's power  to  suspend  the  running  of  the  statute  is  concerned,  does  not  find 
any  support  in  the  courts  of  other  States.  Waterson  v.  Kirkwood,  17  Kan.  9; 
Clinton  Co.  v.  Cox,  37  Iowa,  570. 

''  Rodd  mi  v.  Morley,  1  De  G.  &  J.  1;  Pears  t.  Laing,  L.  R.  12  Eq.  51;  Hough 
t.  Mailey ,  32  Conn.  288;  Ayres  v.  Waite,  10  Cush.  (Mass.)  72;  Baton  v.  Mclntire, 
8  Met.  (Mass.)  87;  Clinton  Co.  v.  Cox,  37  Iowa,  570. 

3  N.  Y.  D.  &  Transportation  Co.  v.  Covert,  29  Barb.  (N.  Y.)  435. 

4Schmucker  v.  Sibert,  18  Kan.  104. 

'Cucullu  v.  Hernandez,  103  U.  S.  I0«5. 

1  Vox  v.  Blossom,  17  Blatchf.  (U.  S.  C.  C.)  352. 


§§  231,  232.]         MORTGAGOR   AND    MORTGAGEE.  $lj 

Sec.  231.  Effect  of  Fraud,  on  Part  of  Mortgagee.  —  When  the 
mortgagee  has  been  guilty  of  fraud,  either  at  the  time  the  mort- 
gage was  made  or  subsequently,  which  has  prevented  the  mort- 
gagor from  redeeming,  a  court  of  equity  will  let  the  mortgagor  in 
to  redeem,  although  more  than  the  statutory  period  has  elapsed 
since  the  mortgagee  went  into  possession.1  In  an  English  case2 
the  mortgage  contained  a  provision  that  it  should  be  redeemed 
with  the  mortgagor's  own  money.  The  court  held  that  the  words 
signified  nothing  where  the  money  was  to  be  repaid,  "for  the 
borrower  being  necessitated,  and  so  under  the  lender's  power,  the 
law  makes  a  benign  construction  in  his  favor,"  and  the  imposition 
of  such  terms  was  held  to  amount  to  a  fraud  in  its  creation,  and 
therefore  that  the  mortgage  was  redeemable  at  any  time. 

Sec.  232.  Distinction  between  Equitable  Lien  for  Purchase 
Money  and  Mortgage.  —  While  the  statute  does  not  run  upon  a 
mortgage  until  the  lapse  of  the  period  requisite  to  bar  an  entry 
upon  lands,  yet  it  is  held  in  New  York  and  Mississippi  that  an 
equitable  lien  in  favor  of  the  vendor  of  land  for  the  purchase 
money  is  barred  when  the  debt  itself  is  barred.3  "There  is," 
says  Bowen,  J.,4  "a  material  distinction  between  a  mortgage  and 
an  equitable  lien  for  the  purchase  price  of  land  given  by  law,  and 
also  between  an  action  to  foreclose  a  mortgage  and  one  to  enforce 
a  lien."  A  lien  created  by  law  must  coexist  with  the  debt,  and 
cannot  survive  it.5  In  the  case  last  cited  it  was  held  that,  while 
a  vendor's  lien  has  the  incidents  of,  it  is  not  a  mortgage,  but 
consists  solely  in  debt,  and  must  be  subject  to  all  the  incidents  of 
the  debt,  and  cannot  be  enforced  when  the  debt  cannot  be,  and 
therefore  that,  when  a  purchase-money  note  is  barred  by  the 
statute,  the  remedy  to  enforce  the  equitable  lien  is  also  barred. 
"It  is,"  say  the  court,  "a  secret  equity,  and  is  not  recognized 
as  against  the  rights  of  a  purchaser  from  the  vendee  without 
notice."6     Upon  principle  and  the  weight  of  authority,  the  fact 

1  In  Reigal  v.  Wood,  1  Johns.  (N.  Y.)  Ch.  402,  this  rule  was  applied  in  a  case 
where  a  judgment  was  revived  by  fraud  and  imposition.  Rakestraw  v.  Brewer, 
Sel.  Cas.  temp.  King,  55;  Marks  v.  Pell,  1  Johns.  (N.  Y.)  Ch.  594. 

s  Ord  v.  Smith,  Sel.   Ch.  temp.  King,  9. 

z  Trotter  v.  Erwin,  27  Miss.  772;  Littlejohn  v.  Gordon,  32  id.  235. 

4  Borst  v.  Corey,  15  N.  Y.  505. 
'    '  Borst  v.  Corey,  supra;  Trotter  v.  Erwin,  supra. 

6  In  Borst  v.  Corey,  supra,  the  court  say:  "  The  action  to  foreclose  a  mortgage 
is  brought  upon  an  instrument  under  seal  which  acknowledges  the  existence  of 


5 18  STATUTES   OF   LIMITATION.  [CHAP.   XVIII. 

that  the  debt  is  barred  appears  not  to  destroy  the  lien  which  the 
law  gives  to  the  vendor  of  lands  for  the  purchase  money,  but  it 
remains  liable  to  be  enforced  in  equity,  until  the  lapse  of  such  a 
period  as,  by  the  statutes  of  the  State,  is  requisite  to  give  a  title 
by  possession.  This  doctrine  is  sustained  by  the  courts  of  Mary- 
land,1 Virginia,2  Connecticut,3  and  Alabama.4 

the  debt  to  secure  which  the  mortgage  is  given;  and  by  reason  of  the  seal  the 
debt  is  presumed  not  to  have  been  paid  until  the  expiration  of  twenty  years 
after  it  becomes  due  and  payable.  The  six  years'  limitation  lias  no  application 
to  a  mortgage.  *  *  *  The  equitable  lien  is  neither  created  nor  evidenced  by 
deed,  but  arises  by  operation  of  law,  and  is  of  no  higher  nature  than  the  debt 
which  it  secures.     It  must  coexist  with  the  debt,  and  cannot  survive  it." 

1  Magruder  v.  Peter,  n  G.  &  J.  (Md.)  217. 

5  Lingan  v.  Henderson,  1  Bland  (Md.)  236,  2S2;  Hopkins  v.  Cockerell,  2  Gratt. 
(Va.)88. 

3  In  this  State  the  question  was  not  directly  passed  upon,  but  the  rule  stated 
in  the  case  sustains  the  general  doctrine  announced  in  the  text.  Belknap  v. 
Gleason,  11  Conn.  160. 

4  Driver  v.  Hudspeth,  16  Ala.  348;  Relfe  v.  Relfe,  34  id.  500.  In  Bizzell  v. 
Nix  60  id.  281;  31  Am.  Rep.  38,  a  bill  was  brought  to  enforce  a  vendor's  lien 
for  the  unpaid  purchase  money  of  land.  The  statute  had  run  against  the  notes 
given  therefor,  and  as  a  consequence  it  was  insisted  that  the  lien  was  destroyed. 
But  the  court  held  otherwise,  Brickell,  C.  J.,  saying:  "  The  authorities,  which 
doubtless  induced  the  decree  of  the  Chancellor,  and  which  are  now  relied  on 
to  support  it,  are  Driver  v.  Hudspeth,  16  Ala.  348,  and  Relfe  v.  Relfe,  34  Ala. 
500.  The  first  was  a  proceeding  under  the  statute  then  in  force  in  the  Orphans' 
Court,  at  the  instance  of  a  vendee  holding  a  oond  for  title,  to  compel  the  per- 
sonal representatives  of  the  vendor,  who  had  died,  to  make  him  title.  The 
purchase  money  had  not  been  paid,  but  an  action  at  law  on  the  notes  given  for 
it  was  barred  by  the  statute  of  limitations.  It  was  held  that  a  vendor  retaining 
the  legal  titles,  and  entering  into  bond  for  its  conveyance  only  on  payment  of 
the  purchase  money,  had  a  lien  in  the  nature  of  a  mortgage;  that  this  lien  the 
court  would  not  divest  until  the  purchase  money  was  paid,  and  that  it  was  not 
impaired,  because  an  action  at  law  for  the  recovery  of  the  purchase  money  was 
barred  by  the  statute  of  limitations.  The  court  say:  '  The  fact  that  the  notes 
were  barred  by  the  statute  of  limitations  does  not  destroy  the  lien,  which  is 
regarded  in  the  nature  of  a  mortgage.  If  the  vendor  whose  notes  are  barred,  or 
hi=;  heirs  after  his  death,  should  bring  ejectment  to  recover  the  land,  and  thus 
drive  the  purchaser  into  a  court  of  equity  to  enjoin  the  action,  it  is  clear  to  my 
mind  that  the  Court  of  Chancery  would  not  interfere  until  he  had  paid  up  the 
purchase  money,  the  remedy  to  recover  which,  at  law,  had  been  barred  by  the 
statute  of  limitations.  The  courtof  equity  would  not  decree  a  specific  perform- 
ance in  favor  of  one  who  withholds  the  compensation  he  stipulated  to  pay,  upon 
the  ground  that  the  legal  remedy  to  recover  it  is  barred.  The  vendor  is  not 
bound  to  sue  upon  his  note,  but  mav  rest  upon  the  security  furnished  by  his 
li-n.'  The  contract  of  sale,  in  Relfe  v.  Relte,  was  bv  parol,  and,  so  far  as  is 
shown  by  the  report  of  the  case,  the  vendor  had  not  conveyed.     It  was  held 


§  233-]         MORTGAGOR  AND  MORTGAGEE.  519 

SEC.  233.  Distinction  between  a  Pledge  and  a  Mortgage.  Differ- 
ence in  Application  of  Statute  to  the  one  and  the  other.  —  A  wide 
distinction  exists  between  a  pledge  of  personal  property  and  a 
transaction  that  amounts  to  a  mortgage  thereof.  Thus,  where 
property  is  deposited  as  collateral  security  with  a  creditor,  with 
no  understanding  or  agreement  that  he  may  sell  the  same  and 
apply  the  proceeds  in  liquidation  of  the  debt,  it  is  a  pledge 
merely,  and  the  title  to  the  property  remains  in  the  pledgor  until 
he  is  divested  thereof  by  due  process  of  law;  but  where  property 
is  deposited  with  a  creditor  to  be  sold,  and  the  proceeds  applied 
in  dischajoe  of  the  debt,  the  transaction  amounts  to  a  morteraee. 
and  the  title  to  the  property  vests  in  the  creditor.  The  distinc- 
tion, as  far  as  the  operation  of  the  statute  is  concerned,  is,  that 

■that  the  lien  for  the  payment  of  the  purchase  money  was  not  lost  or  destroyed, 
because  the  statute  of  limitations  had  operated  a  bar  for  its  recovery  in  an 
action  at  law.  It  was  further  held  that  the  lien  could  not  be  regarded  as  a 
stale  demand  within  less  than  twenty  years  after  the  sale.  It  is  said  by  the 
court:  'The  principle  which  preserves  liens,  notwithstanding  the  bar  of  the 
debt,  is  neither  confined  to  those  secured  by  a  conveyance,  as  for  example  a 
mortgage,  nor  to  those  secured  by  a  sealed  instrument,  nor  even  to  those  pro- 
vided by  an  express  contract.'  Again:  '  The  principle  is,  the  statute  of  limita- 
tions does  not  extinguish  the  debt,  but  merely  bars  the  remedy  by  action  at 
law,  and  there  is  no  inconsistency  in  the  prosecution  of  another  remedy  after 
the  action  at  law  is  barred.'  The  court  was  referred  to  the  New  York  and 
Mississippi  decisions,  to  which  the  appellant  now  refers,  and  declined  to  follow 
them,  saying,  '  These  decisions  are  not  correct  expositions  of  the  law.'  We  are 
not  inclined  to  depart  from  these  decisions.  The  general  principle,  that  when 
the  security  for  a  debt  is  a  lien  on  property,  personal  or  real,  the  lien  is  not 
impaired,  because  the  remedy  at  law  for  the  recovery  of  the  debt  is  barred,  is 
not,  as  is  very  emphatically  and  clearly  stated  in  Relfe  v.  Relfe,  confined  to 
liens  created  by  contract,  or  by  instruments  under  seal,  or  by  mortgages  which 
convey  a  legal  estate  and  confer  a  right  of  entry.  The  debt  is  not  extinguished, 
though  the  statute  of  limitations  may  have  barred  legal  remedies  for  its  recov- 
ery. The  bar  of  the  statute  may  be  removed  by  a  subsequent  promise  or 
acknowledgment  which  is  supported  by  the  debt  as  a  consideration,  and  the 
consideration  rests  on  the  moral  obligation  to  pay,  which  statutes  cannot 
obscure  or  impair.^)  The  debt  not  being  extinguished,  the  lien  for  its  security 
remains,  and  though  legal  remedies  are  barred,  the  equitable  remely  to  enforce 
the  security  is  unaffected.  It  is  not  necessary  further  to  pursue  a  discussion  of 
the  question.  We  cannot  regard  it  as  res  Integra.  The  discussion  was 
exhausted,  and  is  foreclosed  by  the  decisions  to  which  we  have  referred,  and 
on  their  authority  we  are  content  to  rest."  See  Higgins  v.  Scott,  2  B.  &  Ad. 
413;  Spears  v.  Hartley,  3  Esp.  81;  Hopkins  v.  Cockerell,  2  Gratt.  (Va.)  68. 

(a)  Cook  v.  Bramel  (Ky.),  45  L.  R.  A.  212. 


520  STATUTES    OF    LIMITATION.  [CHAP.   XVIII. 

in  the  former  case  the  statute  does  not  begin  to  run  against  the 
pledgor  until  he  has  paid  or  offered  to  pay  the  debt,  while  in  the 
latter  case  the  statute  begins  to  run  against  the  debtor's  right  to 
redeem  at  once  upon  the  maturity  of  the  debt,  and  is  fully  barred 
by  the  lapse  of  the  statutory  period  requisite  to  bar  the  debt  it 
was  given  to  secure.1 

Sec.  234.  Discharge  of  Mortgage  Debt,  Effect  of.  —  As  a  general 
rule,  the  discharge  of  the  debt  which  a  mortgage  is  given  to 
secure  operates  as  a  discharge  of  the  mortgage  ;  but  this  rule  does 
not  apply  where  the  personal  liability  of  the  mortgagor  merely  is 
discharged,  without  intending  to  extinguish  the  debt,2  nor  does  it 
apply  where  the  debt  is  merely  barred  by  the  statute  of  limitations.3 

1  Huntington  v.  Mather,  2  Barb.  (N.  Y.)  538.  Edmonds.  J.,  who  delivered 
the  bpinion  of  the  court,  said:  "  It  seemed  to  be  conceded  on  the  argument 
that  unless  the  original  transaction  between  these  parties  was  a  pledge  of  the 
stock  in  question,  the  plaintiff's  bill  could  not  be  sustained;  and  therefore  it 
was  that  so  much  of  the  argument  was  directed  to  that  point.  One  considera- 
tion very  strenjousiy  urged  was  the  expression  used  in  the  note  that  the  stock 
had  been  '  deposited  as  collateral  security,'  which  it  was  insisted  conveyed  the 
idea  of  a  pledge,  and  that  alone.  But  such  an  expression  is  not  of  itself  suffi- 
cient to  determine  the  character  of  the  transaction;  for  it  has  been  held  that 
even  the  use  of  the  word  'pledge'  has  not  that  effeci,  ex  vi  termini;  and  where  it 
is  the  clear  intent  of  the  parties  that  the  possession  of  the  goods,  etc.,  shall 
remain  in  the  debtor  until  default  in  payment,  it  will  be  regarded  as  a  mort- 
gage, even  if  the  word  '  pledge  '  is  used.  Langdon  v.  Buel,  9  Wend.  (N.  Y.)  80; 
Reeves  v.  Capper,  5  Bing.  N.  C.  136;  Ferguson  v.  Union  Furnace  Co.,  9  Wend. 
(N.  Y.)  345- 

"  There  are  two  leading  considerations  to  be  regarded  in  determining  whether 
the  transaction  is  a  pledge  or  a  mortgage;  namely,  the  title  and  the  possession. 
If  it  is  a  mortgage,  the  legal  title  passes  to  and  is  vested  in  the  creditor.  Story 
on  Bailm.,  g  287;  Langdon  v.  Buel,  supra;  Patchen  v.  Pierce,  12  Wend.  (N.  Y.) 
61.  With  a  pledge  it  is  different;  the  legal  title,  until  a  sale  on  default  of  pay- 
ment or  redemption,  continuing  in  the  pledgor.  Story  on  Bailm.,  supra;  Cort- 
olyou  v.  Lansing,  2  Caines  Cas.  (N.  Y.)  200.  The  pawnee  has  indeed  a  quali- 
fied property  in  the  article  pledged,  but  upon  a  tender  to  him  of  the  debt  he 
becomes  divested  even  of  that  qualified  property,  and  becomes  a  wrong-doer  if 
after  that  he  persists  in  retaining  the  article  pledged,  from  the  pawnor.  Story 
on  Bailm.,  §§  339,  341 ;  Coggs  v.  Bernard,  2  Ld.  Raym.  916.  The  essential  differ- 
ence as  to  matter  of  right  is,  that  in  one  the  title  passes,  and  in  the  other  it  does 
not.  But  the  difference  in  substance  and  fact  is,  that  in  the  case  of  a  pawn  or 
pit  dffc  the  possession  must  pass  out  of  the  pawnor,  but  in  the  case  of  a  mort- 
il  need  not.  In  this  case  the  possession  and  title  both  passed  out  of  the 
debtor." 

•'  Donnelly  v.  Simonton,  13  Minn.  301.  See  Hayden  v.  Smith,  12  Met.  (Mass.) 
511. 

'Chamberlain  v.  Meeder,  l6  N.  H.  381;  Bush  v.  Cooper,  26  Miss    599. 


§  235-]         MORTGAGOR  AND  MORTGAGEE.  521 

SEC.  235.  Mortgagee  in  Possession.  —  Where  a  mortgagee  is  in 
possession  of  the  premises  for  the  full  statutory  period  after  con- 
dition broken,  the  mortgagor's  right  of  redemption  is  forever 
barred,  unless  within  that  period  the  mortgagee  has  accepted 
from  him  some  portion  of  the  principal  or  interest  of  the  mort- 
gage debt,  or  in  some  other  legally  effectual  way  acknowledged 
the  right  of  the  mortgagor  to  redeem.  This  may  be  done  by 
settling  the  account  of  the  rents  and  profits  of  the  premises  within 
that  period,  as  the  principal  objection  urged  by  courts  of  equity 
against  letting  the  mortgagor  in  to  redeem  after  that  period  is  the 
difficulty  of  settling  the  accounts  between  the  parties  for  so  long 
a  period;  and  where  this  objection  is  obviated  by  a  settlement 
made  by  the  parties  themselves,  the  mortgagor  will  be  admitted 
to  redeem  partly  upon  that  ground,  and  partly  upon  the  ground 
that  such  settlement  operates  as  an  admission  of  the  mortgagor's 
right.  Thus,  in  an  English  case,1  a  mortgage  was  held  to  be 
redeemable  where  the  mortgagee  had  been  in  possession  for  forty 
years,  upon  the  foot  of  a  stated  account  and  an  agreement  for 
turning  interest  into  principal.2 

Any  act  of  the  mortgagee  by  which  he  acknowledges  the  trans- 

1  Conway  v.  Shrimpton,  5  Bro.  P.  C.  187;  Blake  v.  Foster,  2  B.  &  B.  387; 
Chapman  v.  Corpe,  41  L.  T.  N.  S.  22;  Guthrie  v.  Field,  21  Ark.  379;  Gunn  v. 
Brantley,  21  Ala.  633;  Arrington  v.  Liscom,  34  Cal.  366;  Taylor  v.  McClain,  60 
Cal.  651,  64  id.  513;  Bunce  v.  Wolcotl,  2  Conn.  27;  Morgan  v.  Morgan,  10  Ga. 
297;  Hallesy  'v.  Jackson,  66  111.  139;  Montgomery  v.  Chadwick,  7  Iowa,  114; 
Crawford  v.  Taylor,  42  id.  260;  Roberts  v.  Littlefield,  48  Me.  61;  Hertle  v.  Mc- 
Donald, 2  Md.  Ch.  128;  Crook  v.  Glenn,  30  Md.  55;  Stevens  v.  Dedham  Inst. 
129  Mass.  547;  Reynolds  v.  Green,  io  Mich.  355;  Hoffman  v.  Harrington.  38 
id.  392;  McNair  :\  Lot,  34  Mo.  285;  Tripe  v.  Marcy,  39  N.  H.  439;  Miner  v. 
Beekman,  50  N.  Y.  337;  Bailey  v.  Carter,  7  Ired.  Eq.  (N.  C.)  282;  YarDrough 
v.  Newell,  10  Yerg.  (Tenn.)  376:  Knowlton  v.  Walker,  13  Wis.  264;  Ross  v. 
Norvell,  1  Wash.  (Va.)  14;  Hughes  v.  Edwards,  9  Wheat.  (IT.  S.)  4S9;  Fox  v. 
Blossom,  17  Blatchf.  (U.  S.  C.  C.)  352;  Amory  v.  Lawrence,  3  Cliff  (U.  S.  C. 
C.)  523;  see  Doe  v.  De  Vetrr,  3  Allen  (N.  B.)  23;  Miner  v.  Beekman,  14  Abb. 
Pr.  N.  S.  (N.  Y.)  1;  Hammonds  v.  Hopkins,  3  Yerg.  525;  Wood  v.  Jones,  Meigs 
(Tenn.)  513;  Anding  v.  Davis,  38  Miss.  574. 

'  Cholmondeley  z:  Clinton,  2  J.  &  W.  188;  Giles  v.  Baremore,  5  Johns.  (N.  Y.) 
Ch.  545.  In  Proctor  v.  Cowper,  2  Vern.  377,  a  bill  was  brought  to  redeem  a 
mortgage  made  in  1642.  The  mortgagee  eniered  into  possession  in  1650,  and 
there  were  three  descents  on  the  defendant's  part  and  four  on  the  part  of  the 
plaintiff;  but  the  length  of  time  being  unsevered  for  the  greatest  portion  of  the 
time  by  infancy  or  coverture,  and  because  the  mortgagee,  in  16S6.  brought  a 
bill  to  foreclose,  and  an  account  was  then  made  up  by  the  mortgagee,  the  court 
decreed  a  redemption  and  an  account  from  the  foot  of  the  account  in  16S6. 


522  STATUTES   OF   LIMITATION.  [CHAP.   XVIII. 

action  to  be  still  a  mortgage,  any  time  within  twenty  years  before 
a  bill  to  redeem  is  brought,  is  held  sufficient  to  keep  the  mort- 
gagor's right  to  redeem  on  foot.  Thus,  if  the  mortgagee,  in  his 
will,  disposes  of  the  money  "  in  case  the  mortgage  is  redeemed,"  1 
or  by  any  other  deliberate  acts  admits  that  he  is  mortgagee  as  to 
the  estate,  a  bill  to  redeem  will  lie;2  or  where  the  mortgagee 
enters  under  an  agreement  to  reimburse  himself  out  of  the  profits.3 
Before  the  statutes  required  acknowledgments  to  be  in  writing, 
it  was  seriously  questioned  whether  any  form  of  parol  acknowl- 
edgment would  be  sufficient,  and  in  an  early  case  in  this  country,4 

1  Cruise's  Digest,  156.     See  Hauselt  v.  Patterson,  124  N.  Y.  349. 

5  Perry  v.  Marston,  2  Bro.  Ch.  397;  Ross  v.  Norvell,  1  Wash.  (U.  S.  C.  C.)  18; 
Marks  v.  Pell,  1  Johns.  (N.  Y.)  Ch.  594;  Whiting  v.  White,  2  Cox,  290.  A 
recognition  of  the  mortgage  incidentally  in  any  conveyance  or  other  instrument 
is  sufficient.  Pender  v.  Jones,  2  Hayw.  (N.  C.)  294;  Price  v.  Copner,  1  S.  &  S. 
347;  Hansard  v.  Harvey,  18  Ves.  455;  Conway  ?/.  Shrimpton,  supra;  Ord  v. 
Smith,  Sel.  Cas.  temp.  King,  9;  Hodle  v.  Healey,  1  V.  &  B.  536;  Vernon  v. 
Bethell,  2  Eden,  no;  Elmendorf  v.  Taylor,  10  Wheat.  (U.  S.)  152.  See  Turlock 
v.  Roby,  12  Scott,  S7;   Lucas   v.  Dennison,  7  Jur.  1122. 

3  Marks  v.  Pell,  supra.  Acknowledgments  by  a  mortgagee  in  possession  have 
been  held  sufficient  to  remove  the  statute  bar  in  numerous  cases,  as  stating  an 
account  of  the  rents  and  profits  of  the  land.  Barron  v.  Martin,  Cooper's  Ch. 
189;  Palmer  v.  Jackson,  3  Bro.  P.  C.  194;  Ley  v.  Peter,  3  H.  &  N.  101;  Kalheim 
v.  Harrison,  34  Miss.  457,  or  the  execution  of  a  written  promise:  Snavely  v. 
Pickle,  29  Gratt.  (Va.)  27;  Hall  v.  Felton,  105  Mass.  516;  Lyon  v.  McDonald,  51 
Mich.  435;  Haywood  v.  Ensley,  8  Humph.  (Tenn.)  460;  Murphy  v.  Coates,  6 
Stew.  Eq.  (N.  J.)  424;  Kerndt  v.  Porterfield,  56  Iowa,  412;  Wells  v.  Harter,  56 
Cal.  342;  Schmucker  v.  Sibert,  18  Kan.  104;  or  a  deed  to  third  persons;  Cape 
Girardeau  County  v.  Harrison,  58  Mo.  go;  Randall  v.  Bradley,  65  Me.  43;  Biddel 
v.  Brizzolara,  56  Cal.  374;  or  by  an  acceptance  of  interest  or  a  part  of  the 
principal  debt;  Winchester  v.  Ball,  54  Me.  55S;  Stump  v.  Henry,  6  Md.  201; 
Ftsk  v.  Stewart,  24  Minn.  97;  Pears  v.  Laing,  L.  R.  12  Eq.  41;  or  by  bringing 
a  bill  to  foreclose,  or  any  proceeding  to  enforce  payment  of  the  mortgage  debt; 
Robinson  v.  Fife,  3  Ohio  St.  551;  Dexter  v.  Arnold,  1  Sumner  (U.  S.)  109; 
Erskine  v.  North,  14  Gratt.  (Va  )  60;  Giles  v.  Baremore,  5  Johns.  Ch.  (N.  Y.) 
545;  Johnson  v.  Johnson,  81  Mo.  331;  Cleveland  v.  Harrison,  15  Wis.  870;  Mar- 
tin v.  Bnwker,  19  Vt.  526;  Ricker  v.  Blanchard,  45  N.  H.  39;  and  purposely 
absenting  or  concealing  himself  so  as  to  prevent  a  tender  of  the  amount  due  on 
the  mortgage  has  been  held  sufficient.  Waldo  v.  Rice,  14  Wis.  286.  See  Wal- 
lace v.  Stevens,  66  Me.  190;  Cunningham  v.  Hawkins,  24  Cal.  403. 

As  to  the  effect  of  mere  parol  admissions,  see  Green  v.  Cross,  45  N.  H.  574; 
Cheaver  v.  Perley,  n  Allen  (Mass.)  5S4;  Hough  v.  Bailey.  32  Conn.  288  Mor- 
gan v.  Morgan,  ioGa.  297;  Wimmer  v.  Ficklin,  14  Bush  (Ky.)  193;  Shepperd 
;  .  Murrlock,  3Murph.  (N.  C.)  218. 

'  Dexter  v.  Arnold,  3  Sumn.  (U.  S.  C.  C.)  160,  where  Story,  J.,  comments  on 
the  case  of  Perry  v.  Marston,  2  Bro.  Ch.  357,  where  it  has  been  supposed 
(though   it  is  not,  perhaps,  certainl  that  Lord  Thurlow  thought  parol  evidence 


■§  236.]  MORTGAGOR   AND    MORTGAGEE.  523 

Story,  J.,  in  a  very  able  opinion  in  which  he  carefully  reviewed 
the  cases,  held  that  such  an  acknowledgment  or  admission  would 
not  be  sufficient.1  (a) 

SEC.  236.  Absolute  Conveyance,  but  in  fact  Mortgages.  —  If 
the  parties  to  an  instrument,  at  the  time  of  its  execution,  intend 
it  as  a  security,  whatever  may  be  its  form,  equity  will  consider  it 
as  a  mortgage,  and  no  terms  or  words  used  in  it  will  be  allowed 
to  change  its  character,  and  cut  off  the  right  of  redemption;2 
and  this  is  the  case  even  though  the  conveyance  on  its  face  is 
absolute,  and  there  is  nothing  to  indicate  that  it  was  intended  as 
a  security  for  a  loan  or  a  pre-existing  debt;3  and  parol  evidence 
is  admissible  to  show  that  it  was  intended  as  a  mortgage,4  or  that 

admissible,  and  sufficient  to  give  the  plaintiff  a  decree  for  redemption,  but  he, 
in  fact,  decided  against  it  on  another  ground.  See  Reeks  v.  Postlelhvvaite, 
Cooper's  Eq.  160;  Barron  v.  Martin,  19  Ves.  326;  Marks  v.  Pell,  1  Johns.  (N. 
Y.)  Ch.  594. 

1  See  also  Whiting  v.  White,  2  Cox,  290. 

'Robinson  v.  Farrelly,  16  Ala.  472;  Richardson  v.  Barrick,  16  Iowa,  407; 
Howe  v.  Russell,  36  Me.  115;  Artz  v.  Grove,  21  Md.  456;  Bank  of  Westminster 
v.  Whyte,  1  Md.  Ch.  536;  Parks  v.  Hall,  2  Pick.  (Mass.)  211;  Steel  v.  Steel,  4 
Allen  (Mass.)  417;  Vasser  v.  Vasser,  1  Cush.  (Miss.)  378;  Davis  v.  Clay,  2  Mo. 
161;  Wilson  v.  Drumrite,  21  Mo.  325;  Somersworth  v.  Roberts,  3S  N.  H.  22;  De 
Camp  v.  Crane,  ig  N.  J.  Eq.  166;  Holliday  v.  Arthur,  25  Iowa,  19;  Phoenix  v. 
Gardner,  13  Minn.  430;  Bingham  v.  Thompson,  4  Nev.  224;  Cotterell  v.  Long, 
20  Ohio,  464;  Miami,  etc.,  Co.  v.  United  States  Bank,  Wright  (Ohio)  249; 
Pattison  v.  Horn,  1  Grant  (Penn.)  Cas.  301,  304;  Halo  v.  Schick,  57  Penn.  St. 
319;  Nichols  v.  Reynolds,  1  R.  I.  30;  Bennett  v.  Union  Bank,  5  Humph.  (Tenn  ) 
612;  McCan  v.  Marshall,  7  id.  121;  Webb  v.  Patterson,  id.  431;  Hinson  v.  Partee, 
11  id.  587;  Yarbrough  v.  Newell,  10  Yerg.  (Tenn.)  376;  Delahay  v.  McConnel, 
5  111.  156;  Nichols  v.  Cabe,  3  Head  (Tenn.)  92;  Nickson  v.  Toney,  id.  655;  Yates 
v.  Yates,  21  Wis.  473;  Catlin  v.  Chittenden,  Brayt.  (Vt.)  163;  Campbell  v. 
Worthington,  6  Vt.  448;  Molt  v.  Harrington,  12  id.  119;  Wright  v.  Bates,  13  id. 
341;   Rogan  v.  Walker,  1  Wis.  527. 

3Kellum  v.  Smith,  33  Penn.  St.  158;  Holmes  v.  Grant,  S  Paige  (N.  Y.)  Ch. 
243;  Parmalee  v.  Lawrence,  44  111.  405;  Baxter  v.  Deas,  24  Tex.  17;  Mills  v. 
Darling,  43  Me.  565;  Crassen  v.  Swoveland,  22  Ind.  427;  Barkelew  v.  Taylor, 
8  N.  J.  Eq.  206;  Chaires  v.  Brady,  10  Fla.  133. 

*  Babcock  v.  Wyman,  19  How.  (U.  S.)  289;  Rogan  v.  Walker,  1  Wis.  527. 
Bishop  v.  Bishop,  13  Ala.  475;  Bryan  v.  Cowart,  21  Ala.  92;  Blakemore  v. 
Byrnside,  7  Ark,   505;  Jordon  v.   Fenno.   13  Ark.   593;   Pierce  v.   Robinson,   13 

(a)  A  mortgagee  of  land,  while  dis-  so  disseise  the  mortgagee  as  to  invali- 
seised  by  a  stranger,  cannot  make  a  date  a  transfer  of  the  mortgage  title, 
valid  assignment  of  his  mortgage;  but  or  the  execution  of  a  power  of  sale  con- 
exclusive  possession  by  a  mortgagor  tained  in  the  mortgage.  Dadmun  v. 
and  those  claiming  under  him,  with  a  Lamson,  9  Allen  (Mass.)  85;  Murphy 
claim  of  exclusive  ownership,  does  not  v.    Welch,    12S    Mass.  489;   Holmes  v. 


524  STATUTES   OF   LIMITATION.  [CHAP.   XVIII. 

the  defeasance  was  omitted  by  fraud  or  mistake.1  Upon  this 
class  of  mortgages  it  has  been  held  that  the  statute  does  not 
begin  to  run  until  a  tender  of  the  money  which  it  was  given  to 

Cal.  116;  Jones  v.  Jones,  I  Head  (Tenn.)  105;  Guinn  v.  Locke,  id.  no;  People 
v.  Irwin,  14  Cal.  42S;  Johnson  v.  Sherman,  15  Cal.  287;  Cunningham  v. 
Hawkins,  27  Cal.  603;  Hopper  v.  Jones,  29  Cal.  18;  Trucks  v.  Lindsev,  18  Iowa, 
504;  Jackson  v.  Lodge,  36  Cal.  28;  Washburn  v.  Merrill,  1  Day  (Conn.)  139; 
Marks  v.  Pell,  1  Johns.  (N.  Y.)  Ch.  594;  Collins  v.  Tillou,  26  Conn.  368;  Hovey 
v.  Holcomb,  11  111.  660;  Shaver  v.  Woodward,  28  111.  277;  Roberts  v.  McMahan, 
4  Greene  (Iowa)  34;  Green  v.  Ball,  4  Bush  (Ky  )  586;  Whitney  v.  Batchelder,  32 
Me.  313;  Emerson  v.  Atwaler,  7  Mich.  12;  Johnson  v.  Huslon,  17  Mo.  58;  Carl- 
yon  v.  Lannan,  4  New  156;  Condit  v.  Tichenor,  19  N.  J.  Eq.  43;  Crane  v. 
Buchanan,  29  Ind.  570;  Key  v.  McCleary,  25  Iowa,  191;  Phoenix  v.  Gardner,  13 
Minn.  430;  Bingham  v.  Thompson,  4  Nev.  224;  Walton  v.  Cronly,  14  Wend. 
(N.  Y.)  63;  Swart  v.  Service,  21  id.  36;  Webb  v.  Rice,  1  Hill  (N.  Y.)  606;  Hodges 
v.  Tennessee,  etc.,  Ins.  Co.,  S  N.  Y.  (4  Seld.)  416;  Kimborough  v.  Smith,  2  Dev. 
(N.  C.)  Eq.  558;  Couch  z>.  Sutton,  1  Grant  (Penn.)  Cas.  114;  Pattison  v.  Horn, 
id.  301,  304;  Stamper  v.  Johnson,  3  Tex.  1;  Mead  v.  Randolph,  8  Tex.  191; 
Hannay  v.  Thompson,  14  Tex.  142;  Mann  v.  Falcon,  25  Tex.  271;  Plato  v.  Roe, 
14  Wis.  453.  See  Fitzpatrick  v.  Smith,  1  Desaus  (S.  C.)  340.  To  the  contrary, 
Hale  v.  Jewell,  7  Me.  435;  Bryant  v.  Crosby,  36  id.  562;  Watson  v,  Dickens,  20 
Miss.  608. 

1  Taylor  v.  Luther,  2  Sumn.  (U.  S.  C.  C.)  228;  Morris  v.  Nixon,  1  How.  118; 
Slee  v.  Manhattan  Co.,  1  Paige  (N.  Y.)  Ch.  4S;  Whittrick  v.  Kane,  1  id.  202; 
Van  Buren  v.  Olmstead,  5  iJ.  1;  Strong  v.  Stewart,  4  Johns.  (N.  Y.)  Ch. 
167;  Ross  v.  Norvell,  1  Wash.  (Va.)  14;  Anon.,  2  Hay  w.  (N.  C.)  26;  M'Laurin  v. 
Wright,  2  Ired.  (N.  C.)  Eq.  94;  Hudson  v.  Isbell,  5  Stew.  &  P.  (Ala.)  67;  Eng- 
lish v.  Lane,  1  Port.  (Ala.)  32S;  Craft  v.  Bullard,  S.  &  M.  (Miss.)  Ch.  366^ 
Murphy  v.  Trigg,  1  T.  B.  Mon.  (Ky.)  72;  Lewis  v.  Robards,  3  id.  406;  Lindley 
v.  Sharp,  7  id.  248;  Overton  v.  Bigelow,  3  Yerg.  (Tenn.)  513;  Miami  Exporting 
Co.  v.  United  States  Bank,  Wright  (Ohio)  249;  Blair  v.  Bass,  4  Blackf.  (Ind.) 
539;  Delahay  v.  McConnel,  5  111.  156;  Wadsworth  v.  Loranger,  Harr.  (Mich.) 
113;  Lane  v.  Dickerson,  10  Yerg.  (Tenn.)  373;  Convvell  v.  Evill,  4  Blackf. 
(Ind.)  67;  Scott  v.  Britton,  2  Yerg.  (Tenn.)  215;  May  v.  Eastin,  2  Port.  (Ala.) 
414;  Aborn  v.  Burnett,  2  Blackf.  (Ind.)  101;  Bank  of  Westminster  v.  Whyte,  1 
Md.  Ch.  536;  Lokerson  v.  Still  well,  13  N.  J.  Eq.  357.  To  the  contrary,  Streator 
v.  Jones,  1  Murph.  (NT.  C.)  449;  Thompson  v.  Patton,  5   Litt.  (Ky.)  74. 

Turner's  Falls  Co.,  150  Mass.  535,  547.  session  subject   to  a   mortgage,  and  is 

See    1    Encyc.   of   Law    and    Proc,    p.  not   adverse.      Lewis    v.    Harkins,    23 

i'.'   ,;  3  Kerr  on  Real  Property,  §  2104;  Wall.  (U.  S.^  119,  127;  Wheeling  Bridge 

Longstreet    v.    Brown    (N.  J.   Eq.),    37  &  T.  Ry.  Co.  v.  Reymann  Brewing  Co., 

Atl.  '<>.  90  Fed.  Rep.  189,  195.     See  Morgan  v. 

As    t"    who    is  a  "  person    claiming  Mueller,   107  Wis.  241;   Milnes  v.   Van 

under  a  mortgage"  under  the  English  Gilder,  197   Penn.  St.   347;  Cochran  v. 

Real    Property    Limitation    Act,    1S74,  Linville  Impr.  Co..  127  N.  C.  386;  Wat- 

ee    I  hornton  v.   France,  [1897]  2  son    v.    Heyn   (Neb.),   86   N.   W.    1064; 

Q    B.    in.  Chase   v.   Cathright,    53    Ark.    358,  22c 

As    stated    supra,  §   219,    possession  Am.  St.  Rep.  207,  and  note:   32  Am.  L„ 

subject   to   a  vendor's  lien  is  1!kc  pos-  Reg.  (N.  S.)  859. 


§  236.]  MORTGAGOR   AND    MORTGAGEE.  525 

secure,  and  a  refusal  to  reconvey.1  But  there  is  no  question  but 
that  a  court  of  equity  would  refuse  to  enforce  a  right  to  redeem, 
where  the  grantee  had  slept  upon  his  rights  until  his  claim  had 
become  stale,  {a) 

1  Wilson  v.  Richards,  1  Neb.  342. 

(a)  Neglect  by  a   grantee   for  thirty  mortgage  only.     Mott  v.  Fiske  (Ind.). 

years  to  enforce  any  right  under  a  deed  58  N.  E.  1053 ;  Porter  v .  White,  (N.  C.), 

absolute  on  its  face  does  not  preclude  38  S.  E.  24.     See  Johnson  v.  Prosperity 

the  claim  that  such  deed  was  in  fact  a  L.  &  B.  Assoc,  9+  111.  App.  260. 


526  STATUTES   OF   LIMITATION.  [CHAP.   XIX. 


CHAPTER  XIX. 

Disabilities  in  Personal  Actions. 

Sec.  237.  Saving  Clauses  in  Statutes  in  Sec.  245.   What  constitutes  an  Absence 

Favor  of   Plaintiffs.  from  the  State. 

23S.   Infancy.  246.  Joint    Debtors,     Absence    of 

239.  Insane  Persons,    Non   Com-  one,  effect  of. 

potes,  etc.  247.  Residence   need   not  be  con- 

240.  Coverture.  tinuous. 

241.  Imprisonment.  248.  Absconding  Debtors. 

242.  Alien  Enemy.  249.  Concealment. 

243.  Injunction.  250.  Foreign  Corporations. 

244.  Absence  of   Defendant  from  25L  Cumulative  Disabilities. 

State,  Statutory  Provisions  252.   Disability  must  be  one  pro- 

as to.  vided  for  by  Statute. 

253.    Disability  of  Defendants. 

SEC.  237.  Saving  Clauses  in  Statutes  in  Favor  of  Plaintiff.  —  In 
the  seventh  section  of  the  statute  of  James  it  is  provided  that,  if 
at  the  time  when  a  cause  of  action  accrued  any  person  entitled 
to  bring  the  same  shall  be  within  the  age  of  twenty-one  years, 
feme  covert,  non  compos  mentis,  imprisoned,  or  beyond  the  seas,  {a) 
such  person  shall  be  at  liberty  to  bring  the  same  actions  within  the 
times  limited  by  the  statute  after  his  disability  has  terminated  ;  and 
substantially  the  same  provision  is  incorporated  into  the  statutes 
of  most  of  the  States.  In  Maine,1  these  and  other  exceptions 
are  made,  the  words  "married  woman"  and  "insane"  being 
substituted  for  "feme  covert  "  and  non  compos  mentis;  so,  also, 
in  Vermont,  but  the  statute  of  which  State  also  contains  the 
additional  exceptions  existing  in  the  Maine  statute,  except  that 
in  cases  where  a  debtor  is  out  of  the  State  at  the  time  when  an 
action  accrues,  or  after  it  accrues,  the  exception  does  not  apply 
if  the  debtor  has  within  the  State  known  property  which,  by  the 
common  and  ordinary  processes  of  law,  could  be  attached;  so, 
also,  by  section  12 12  of  the  statute  of  Vermont,  whenever  the 
commencement  of  an  action   is  stayed  by  an    injunction   of  any 

1  Sec  Appendix,  Maine  Rev.  Stats.  (1883),  ch.  81,  92,  93,  103,  §  8S. 

(a)  In  America  the  phrase  "  beyond     Worden,   52   Md.   283,    291;   Mason    v. 
the   Beaa  "    means   out  of   the   State,  or     Union  Mills  Co.,  81  Md.  446. 
out    of   the   jurisdiction.       Maurice    v. 


§  237-]  DISABILITIES    IN    PERSONAL  ACTIONS.  527 

court  of  equity,  the  time  during  which  such  injunction  is  in  force 
is  not  to  be  taken  as  any  part  of  the  time  limited  for  the  com- 
mencement of  the  suit  enjoined.1  In  New  Hampshire,  sub- 
stantially the  same  exceptions  exist  as  in  the  statute  of  James, 
except  that  the  words  "insane  person"  are  substituted  for  non 
compos  mentis ;  no  exception  is  made  in  favor  of  persons 
imprisoned  or  out  of  the  United  States;2  and  substantially  the 
same  exception  is  made  as  in  Maine  in  the  case  of  the  absence  of 
the  debtor,  the  exception  being  that,  if  the  defendant  at  the  time 
the  cause  of  action  accrued,  or  afterward,  "  was  absent  from  and 
residing  out  of  the  State,"  the  time  of  such  absence  shall  be 
excluded.  In  Massachusetts,3  an  exception  is  made  in  favor  of 
infants,  persons  "disabled  by  marriage,"  insane  persons  or  per- 
sons imprisoned,  alien  citizens  of  a  country  at  war  with  the  United 
States,  and  also  where  the  defendant  at  the  time  when  the  cause 
of  action  accrued  was  absent  from  the  State.  In  Connecticut,4 
as  to  actions  of  account,  debt  due  by  book,  or  on  simple  implied 
contract,  or  upon  any  contract  in  writing,  not  under  seal,  except 
promissory  notes  not  negotiable,  persons  legally  incapable  to 
bring  any  such  action  at  the  accruing  thereof  may  bring  the  same 
at  any  time  within  three  years  after  becoming  legally  capable  to 
do  so;  and  the  same  exception  exists  as  to  specialties,  except 
that  four  years  are  given  after  the  party  becomes  capable  of  suing ; 
where  a  person  dies  before  the  statute  bar  has  become  complete, 
his  executor  or  administrator  shall  have  one  year  from  the  time 
of  such  decease  in  which  to  bring  an  action  thereon.  In  Rhode 
Island,  substantially  the  same  provision  exists  as  in  Maine,  except 
as  to  absence  from  the  State,  and  in  that  respect  the  provision  is 
substantially  the  same  as  in  Vermont  ;5  and  in  all  cases  of  adverse 
possession  no  exception  is  made  in  favor  of  a  married  woman 
because  of  her  coverture.6  In  New  York,7  infancy  or  insanity 
creates  a  disability,  and  so  does  imprisonment  on  a  criminal 
charge  or  in  execution  upon  conviction  of  a  criminal  offense  for 
a  term  less  than   for  life;  but  the  time   for  bringing  an  action 

1  Vermont  Stats.  (1894),  §  1208  et  seq. 

5  New  Hampshire  Public  Stats.  (1901),  ch.  217,  §§  2,  7,  8. 

3  Massachusetts  Public  Stats.  (1S82),  ch.  197,  §§  9-11. 

4  Connecticut  Gen.  Stats.  (188S),  ch.  98,  §  1370  et  seq. 

6  Rhode  Island  Gen.  Laws  (1896),  ch.  234,  §  5. 
6  Ibid.,  ch.  194,  §  17. 

,  Bliss's  N.  Y.  Ann.  Code  (4th  ed.),  §  396. 


528  STATUTES   OF   LIMITATION.  [CHAP.  XIX. 

cannot  be  extended  more  than  five  years  by  any  such  disability 
except  infancy,  nor  in  any  case  more  than  one  year  after  the  dis- 
ability ceases.  As  to  absence  from  the  State  when  the  right  of 
action  accrues,  substantially  the  same  provision  exists  as  in  the 
New  England  States.  In  New  Jersey,1  an  exception  is  made  in 
cases  of  infancy  and  insanity,  but  not  in  the  case  of  coverture. 
In  Pennsylvania,  the  same  provisions  exist  as  in  the  statute  of 
James,  and  the  provision  as  to  persons  "beyond  sea"  is  con- 
strued as  meaning  persons  "without  the  United  States."2  In 
Delaware,3  exception  is  made  in  favor  of  persons  "  under  disa- 
bility of  infancy,  coverture,  or  incompetency  of  mind."  In 
Maryland,  the  same  exceptions  exist  as  in  the  statute  of  James, 
except  that  "  absence  from  the  State  "  is  substituted  for  "  beyond 
the  seas."4  In  Virginia,5  exception  is  made  in  favor  of  infants, 
married  women,  and  insane  persons;  but  the  section  "does  not 
apply  to  a  married  woman  having  the  right  to  make  an  entry  on 
or  bring  an  action  to  recover  land  which  is  her  separate  estate." 
In  South  Carolina,6  substantially  the  same  exceptions  exist  as  in 
New  York;  so,  in  North  Carolina,7  except  that  married  women 
are  also  included  in  the  exception,  as  also  are  those  "  imprisoned 
on  a  criminal  charge,  or  in  execution  upon  conviction  of  a  crimi- 
nal offense. ' '  In  Alabama,  persons  under  the  disability  of  infancy, 
coverture,  insanity,  or  imprisonment  on  a  criminal  charge  for  less 
than  for  life,  are  given  three  years,  or  the  period  allowed  by  law 
for  the  bringing  of  such  action  if  it  be  less  than  three  years,  after 
such  disability  is  removed  to  bring  an  action,  provided  that  no 
disability  shall  extend  the  period  of  limitation  beyond  twenty 
years  from  the  time  when  the  cause  of  action  accrued.8  (a)  In 
Georgia,  infants,  idiots  or  insane  persons,  or  persons  imprisoned, 

1  New  Jersey  Gen.  Stats.  (1896),  p.  1975,  §  4. 

'  1  Pepper  &  Lewis'  Digest  (1896),  p.   2671;  Gonder  v.  Estabrook,  33  Penn. 
St.  374. 

1  Delaware  Laws  (1893),  ch.  123,  §§  13,  14. 

4  Maryland  Public  Gen.  Laws  (1888),  art.  57,  §§  4,  5. 

6  Virginia  Code  (1887),  §  2917. 

•South  Carolina  Code,  §^  108,  122. 

1  Carle's  Ann.  N.  C.  Code  (2d  ed.),  §  14S. 

H  Alabama  Civil  Code  (1896),  §  2807. 

(a)  In   actions   to   recover  land,  here  three  years  in  which  to  sue.     Sandell 

limited   lo  seven   years,  persons  under  &    Hill's   Digest  of  Arkansas  Statutes 

dis  iMlitv  have,  after  it  is  removed,  and  (1894),  §  4815. 
the    seven    years    have    elapsed, 


§   23/.]  DISABILITIES    IN    PERSONAL   ACTIONS.  529 

who  are  such  when  the  cause  of  action  accrues,  are  given  the  full 
statutory  period  after  such  disability  is  removed,  to  bring  an 
action;1  and  substantially  the  same  provision  exists  in  Arkansas, 
except  that  "idiots"  are  not  expressly  included,  and  imprison- 
ment does  not  constitute  a  disability,  unless  it  occurs  "beyond 
the  limits  of  the  State."2  So  in  Colorado,  the  disabilities  are 
substantially  the  same  as  in  Georgia,  except  as  to  "  idiots,"  and 
the  statute  also  includes  married  women  and  persons  who  at 
the  time  when  the  action  accrued  were  absent  from  the  United 
States.3  In  Florida,  a  saving  exists  in  favor  of  infants,  insane 
persons,  persons  imprisoned,  and  seven  years  is  given  after  the 
removal  of  such  disability,  or  after  the  death  of  such  person,  in 
which  to  bring  an  action  or  to  make  an  entry  or  defense.4  In 
Indiana,5  the  disabilities  are  not  specifically  stated,  but  two  years 
are  given  to  any  person  ' '  under  legal  disabilities  (a)  when  the  cause 
of  action  accrues  "  in  which  to  bring  an  action  "  after  such  disa- 
bility is  removed."  In  Iowa,  non-residence  is  excepted,  and  one 
year  after  the  removal  of  the  disability  is  given  to  minors  and  insane 
persons.6  In  Illinois,  an  exception  is  made  in  favor  of  minors, 
or  if  a  female,  within  the  age  of  eighteen  years,  insane  persons  or 
persons  imprisoned  on  a  criminal  charge,  and  two  years  after  such 
disability  is  removed  is  given.7  In  Kentucky,8  infancy,  coverture, 
or  unsoundness  of  mind  constitute  a  disability,  and  the  period  of 
three  years  after  its  removal  is  given;  by  section  2534  an  excep- 
tion exists  in  favor  of  an  alien  and  a  citizen  of  a  country  at  war 
with  the  United  States;  by  section  2535  the  time  during  which 

1  Georgia  Code  (1895),  §  3779. 

3  Appendix,  Arkansas,  Sandell  &  Hill's  Digest  (1894),  §  4833. 

3  Colorado,  2  Mills'  Ann.  Stats.  (1891),  §  2914. 

4  Florida  Rev.  Stats,  (1892),  §  1292. 

8  Indiana  Stats.  (1894,  by  Burns),  §  297. 

6  Iowa  Code  (1897),  §§  3451,  3453. 

1  Illinois  Rev.  Stats.  (1899,  by  Hurd),  ch.  83,  §  21. 

6  Kentucky  Stats.  (1899,  by  Carroll),  §  2506. 

(a)  This   clause,   "  under   legal   dis-  son,    112    Ind.    344.      As    to   cumula- 

abilities,"  does  not  embrace  non-resi-  tive    disabilities,    see   supra,    %   6    and 

dence,  but  does  include  absence  from  n.  (a);  infra,  §  251;   Miller  v.  Texas  & 

the  United  States,  and  also  coverture.  Pac.    Ry.    Co.,    132   U.  S.  662;     Davis 

Bauman  v.  Grubbs,  26  Ind.  419;  Smith  :-.   Coblens,   174  U.   S.   719;    Gaines  v. 

3j.   Bryan,   74  id.   515;    Royse  v.  Turn-  Hammond,  6  Fed.  Rep.  449,  in   U.  S. 

baugh,    117  id.   539.      Since  1881   mar-  395;   Oliver  v.    Pullam,    24   Fed.    Rep. 

ried   women  are    not    under  disability  127;  East  Tenn.    Iron    &    Coal  Co.    v. 

in    Indiana.       Indianapolis    v.    Patter-  Wiggin,  68  id.  446. 
[stats,  of  LIM.  —  34] 


530  STATUTES    OF    LIMITATION  [CHAP.  XIX.. 

an  action  is  enjoined  is  not  to  be  computed;  and  by  section 
2536  the  time  during  which  the  plaintiff  is  confined  in  the  peni- 
tentiary is  not  to  be  computed.1  In  Mississippi,  infancy  and 
unsoundness  of  mind  constitute  the  only  disabilities.2  In 
Missouri,  the  provision  as  to  disabilities  applies  to  infants,  insane 
persons,  married  women,  and  persons  imprisoned  on  a  criminal 
charge,  or  in  execution  under  sentence  of  a  criminal  court  for  a 
period  less  than  his  natural  life;3  so,  also,  in  Minnesota,  except 
that  in  the  latter  State  the  period  of  limitation  cannot  be  extended 
more  than  five  years,  except  in  the  case  of  infancy,  nor  in  any 
case  longer  than  one  year  after  the  disability  ceases.4  In  Ohio, 
the  exceptions  are  substantially  the  same  as  in  Massachusetts, 
except  as  to  aliens  and  the  defendant's  absence  from  the  State.5 
In  California,  infants,  insane  persons,  persons  imprisoned  on  a 
criminal  charge,  or  in  execution  under  sentence  of  a  criminal 
court  for  a  period  less  than  for  life,  and  a  married  woman  when 
her  husband  is  a  necessary  party  with  her  in  commencing  an 
action,  are  within  the  saving  of  the  statute.6  In  Oregon,  the 
provisions  are  the  same  as  in  California,  except  that  the  qualifi- 
cation as  to  married  women  is  general,  and  except  that  the  period 
within  which  action  shall  be  brought  shall  not  be  extended  more 
than  five  years,  nor  more  than  one  year  after  the  disability 
ceases.7  In  Michigan,  infants,  insane  persons,  persons  imprisoned, 
married  women,  and  persons  absent  from  the  United  States 
(unless  within  the  British  Provinces  of  North  America),  are 
within  the  saving  of  the  real  property  statute.8  In  Wisconsin, 
the  same  disabilities  exist  as  in  New  York;  but  action  must, 
except  in  the  case  of  infancy,  be  brought  within  five  years,  and 
within  one  year  after  the  disability  ceases.9  In  Nevada,  the 
same  disabilities  exist  as  in  Wisconsin,  but  the  period  of  five 
years,  or  after  the  death  of  a  person  while  under  such  disability, 

1  Ibid. 

'  Mississippi  Code,  §  2746. 

'■-  Missouri  Rev.  Stats.  (1889),  §  6767. 

4  Minnesota  Stats.  (1894),  §  5147. 

'Ohio  Rev.  Stats.  (1890),  §§  4986,  4989. 

*  California  Code  of  Civil  Procedure,  §§  328,  352. 

1  1  Oregon  Laws  (1892,  by  Hill),  ch.  1,  §  17 

•3   Michigan   I    impilerl    Laws  (1897),  §$  9718;  as   to  personal   actions    see 

£  9733' 

»  2  Wisconsin  Statutes  (189S),  §  4233- 


§  22,7-']  DISABILITIES   IN    PERSONAL   ACTIONS.  53 1 

after  their  removal  is  given,  and  married  women  are  included.1 
In  Nebraska,  the  exceptions  apply  to  infants,  married  women, 
insane  persons  and  persons  imprisoned.2  In  Tennessee,  the 
saving  is  in  favor  of  infants,  persons  of  unsound  mind,  married 
women,  and  persons  beyond  the  limits  of  the  United  States  or 
the  territories  thereof;3  and  action  maybe  brought  within  the 
statutory  period  after  such  disability  is  removed,  unless  it  exceeds 
three  years,  and  in  that  event  within  three  years.  In  Texas, 
infants,  married  women,  until  they  reach  the  age  of  twenty-one, 
persons  of  unsound  mind,  and  persons  imprisoned,  are  saved  from 
the  operation  of  the  real  property  statute.4  In  Kansas,  persons 
"under  any  legal  disability"  may  bring  an  action  within  two 
years  after  the  disability  is  removed,5  in  the  case  of  real  property, 
and  within  one  year  in  other  cases  except  penalties  and  forfeitures. 
In  West  Virginra,  a  saving  exists  in  favor  of  infants,  married 
women,  and  insane  persons,  except  in  cases  where  married  women 
hold  real  estate  in  their  sole  right.6  In  Arizona,  the  exceptions 
are  in  favor  of  infants,  persons  of  unsound  mind,  and  persons 
imprisoned.7  In  North  and  South  Dakota,8  the  exceptions  are 
the  same  as  in  Oregon;  but  the  period  cannot  be  extended  more 
than  five  years,  except  in  case  of  infancy,  nor  in  any  case  more 
than  one  year  after  the  disability  ceases.  In  Idaho,  the  same 
disabilities  exist  as  in  California.9  In  Montana,  the  same  disa- 
bilities exist,  but  ten  years  are  allowed  in  real  actions  after  the 
disability  ceases,  or  the  death  of  the  party  disabled,  and  in  per- 
sonal actions  five  years  disability  only  is  allowed,  except  in  the 
case  of  infancy,  or  one  year  after  the  disability  ceases.10  In 
New  Mexico,  minors,  insane  persons,  or  persons  "  under  any  legal 
disability,"  are  given  one  year  after  its  removal  in  which  to  bring 
an  action.11     In  Utah,   the  disabilities  are  the  same  as  in  Cali- 

1  Nevada  Compiled  Laws  (1900,  by  Cutting),  §§  3716,  3717. 
'  Nebraska  Code  of  Civil  Proc,  §  17. 
'Tennessee  Code  (1896,  by  Shannon),  §  4448. 

*  Texas  Rev.  Stats.  (1S95),  §3352;  see  §3373. 

'  Kansas  Gen.  Stats.  (1899,  by  Dasslee),  §§  4261,  4263. 
6  West  Virginia  Code  (1891),  ch.  104,  §§  3,  16. 
1  Arizona  Rev.  Stats.  (1887),  §§  2307,  2330. 

8  No.  Dak.  Code  of  Civil  Procedure  (1895),  §  5211;  So.  Dak.  Stats.  (1899,  by 
Grantham),  §  6060. 

•  Idaho  Rev.  Stats.  (1887),  §§  4046,  4070. 

10  2  Montana  Code  of  Civ.  Procedure  (1895),  §§  493,  542. 

11  New  Mexico  Compiled  Laws  (1884),  §  1869. 


532  STATUTES   OF   LIMITATION.  [CHAP.   XIX. 

fornia,  but  married  women  are  not  included,  and  actions  lie  for 
one  year  after  disability  ceases.1  In  Wyoming,  a  saving  exists 
in  favor  of  infants,  insane  persons,  and  persons  imprisoned,  and 
in  personal  actions  the  full  statutory  period  after  such  disability  is 
removed  is  given  in  which  to  bring  an  action,  while  in  real  actions 
ten  years  are  allowed  after  "any  legal  disability"  is  removed.2 
It  will  be  observed  that  these  saving  clauses,  given  here  for  con- 
venience of  comparison  and  reference,  are  substantially  the  same 
as  those  contained  in  the  statute  of  James,  except  that  in  most 
of  them,3  instead  of  an  exception  in  favor  of  persons  non  compos 
mentis,  it  only  exists  in  favor  of  "  insane  persons;  "  a  distinction 
which  is  of  great  importance,  and  excludes  from  its  saving  opera- 
tion idiots,  imbeciles,  etc.,  who  are  properly  embraced  under  the 
head  of  non  compotes.  In  Connecticut,  the  saving  exists  in  favor 
of  persons  "  legally  incapable  "  to  sue,  and  this  applies,  therefore, 
only  in  favor  of  infants  and  femes  covert,  and  such  persons  as 
by  the  common  or  statute  law  are  incapable  of  bringing  an  action 
at  law,  and  does  not  embrace  persons  imprisoned  or  beyond  seas. 
In  Delaware,  instead  of  an  exception  in  favor  of  persons  non 
compos  mentis,  it  exists  in  favor  of  persons  under  the  disability 
of  "incompetency  of  mind,"  which  is  substantially  the  same 
thing,  and  in  Kentucky  "unsoundness  of  mind;"  so,  also,  in 
Tennessee,  Mississippi,  and  Texas.  In  Iowa,  there  are  no  excep- 
tion=  in  favor  of  any  disabilities,  and  no  saving  except  as  to  minors 
and  insane  persons;  while  in  Georgia,  in  addition  to  minors,  insane 
persons,  and  married  women,  idiots  are  expressly  included.  In 
Pennsylvania  and  Maryland,  the  statute  excepts  persons  non  compos 
mentis.    In  Indiana,  none  but  "  legal  "  disabilities  are  excepted. (a) 

1  Utah  Rev.  Stats.  (1898),  §  2889 

9  Wyoming  Rev.  Stats.  (1887),  §§  2375,  2377. 

3  Vermont,  New  Jersey,  New  Hampshire,  Colorado,  Rhode  Island,  Virginia, 
New  York,  Alabama,  Illinois,  Michigan,  Wisconsin,  Missouri,  Arkansas,  Cali- 
fornia, Massachusetts,  Oregon,  North  Carolina,  South  Carolina,  Minnesota, 
Kansas,  Georgia,  Nevada,  Nebraska,  Florida,  Ohio,  West  Virginia,  Arizona, 
Montana,  Idaho,  New  Mexico,  Utah,  and  Wyoming. 

<<i)  Sec  Young  v.  Harris,  05  L.  T.*45;  to  parceners  or  joint  tenants,  if  some 

Fipnt    v.    Thompson,     13S    U.    S.    114;  of  them  are  under  disability,  thesiatute 

Westmeyer    v.    Gallenkamp,    154    Mo.  runs    as    to    all,    notwithstanding    the 

28;  Carnev  v.  Hennessey  (Ct.),  49  Atl.  coverture  or  infancy  of  the  olhers.     In 

gio;   King  v.  Carmichael,   [36  Ind.  20;  Pope  v,  Brassfield  (Ky.),  61  S.  W.  5, 

Lan  Iry  v.   Landry  (La.),  29  S    E.  goo.  7.    it    was   queried   whether   this  case 

In  Moore  v.  Calvert,  6g  Kv    356,  it  was  would   be  followed  undtr  the  present 

held  (hat  when  a  right  of  action  accrues  statutes. 


§  238.]  DISABILITIES   IN    PERSONAL   ACTIONS.  533 

SEC.  238.  Infancy. — An  infant,  in  law,  is  a  person  who  by 
reason  of  his  tender  years  is  regarded  as  incapable  of  contracting, 
and  who  can  neither  sue  or  be  sued  thereon.  In  most  of  the 
States  all  male  persons  under  the  age  of  twenty-one  years,  and 
all  females  under  the  age  of  eighteen  years,  are  infants,  within 
the  meaning  of  the  term  as  used  under  this  head. 

Persons  who  have  not  attained  the  age  of  majority  are  infants, 
and  in  those  States  where  infancy  is  within  the  saving  clause  of 
the  statute,  the  statute  does  not  begin  to  run  against  him  or  her, 
even  though  he  or  she  has  a  guardian  who  might  sue  the  claim  in 
question;1  nor  even  though  other  persons  are  jointly  interested 
in  the  claim,  who  are  of  full  age,2  until  he  or  she  attains  the  age 
of  majority.3  The  fact  that  a  guardian  or  the  infant  himself 
brings  a  suit  before  the  disability  is  removed  does  not  operate  as 
a  waiver  of  the  saving  clause  in  favor  of  the  disability.4     But 

1  Moore  v.  Wallis,  iS  Ala.  45S.  Infancy  is  within  the  savin?  clause  of  all  the 
statutes  except  in  Iowa,  where  there  is  no  exception  in  favor  of  any  disability 
except  in  the  case  of  real  actions,  in  reference  to  which  an  exception  is  made  in 
favor  of  minors,  and  they  are  given  one  year  after  becoming  of  full  age  in 
which  to  bring  an  aclion. 

2  Pendergrast  v.  Gullait.  10  Ga.  21S.  In  Milner  v.  Davis,  Litt.  Sel.  Cas.  (Ky.) 
436,  it  was  held  that  the  infancy  of  one  plaintiff  in  an  action  of  trover  would 
not  prevent  the  statute  from  running  against  all.  But  in  Kentucky  it  is  held 
that  the  infancy  of  one  tenant  in  common  will  not  prevent  the  running  of  the 
statute  against  a  co-tenant.  Thomas  v.  Machir,  4  Bibb  (Ky.)  4t2;  Moore  v. 
Capps,  y  111.  315. 

3  Merrill  v.  Tevis,  2  Dana  (Ky.)  162;  Shannon  v.  Dunn,  S  Blackf.  (Ind.)  182; 
Hawkins  v.  Hawkins,  2S  Ind.  66.  And  the  common-law  presumption  of  pay- 
ment does  not  run  against  an  infant.     Wilkinson   v.  Dunn,  7  Jones  (N.  C.)  125. 

*  Bunt  7'.  Ransom,  10  Johns.  (N.  Y.)  407.  In  Chandler  v.  Vilett,  1  Saund. 
120,  it  was  held  that  the  privileges  by  reason  of  infancy  and  other  impediments 
are  saved  in  an  action  on  the  case  in  assumpsit  by  the  statute  21  James  I.  c.  t6, 
and,  although  in  that  case  it  was  claimed  that  the  infant  should  have  waited 
until  he  became  of  full  age  before  suit  was  brought,  yet  the  court  held  that  he 
might  pursue  his  action  at  any  time  within  age,  although  the  six  years  are 
elapsed.  Cotton's  Case,  2  Inst.  519;  Stowel  v.  Zouch,  Plowd.  366a.  The  mean- 
ing of  the  saving  clause  is,  that  the  right  of  persons  laboring  under  disabilities 
shall  not  su^er  in  consequence  of  such  disabilities;  and,  therefore,  where  per- 
sonal property  of  an  infant  is  illegally  disposed  of,  or  permitted  to  pass  into  the 
hands  of  persons  who  are  not  entitled  to  it,  by  a  guardian  or  other  trustee,  the 
statute  does  not  begin  to  run  against  the  infant  until  he  is  twenty-one  years  of 
age,  and  he  may  recover  in  a  case  where  an  action  by  the  guardian  or  other 
trustee  would  be  barred.  Bacon  v.  Gray,  23  Miss.  140.  See  Layton  v.  The 
State,  4  Harr.  (Del.)  S.  No  disability,  arising  after  the  disability  of  infancy  has 
expired,  can  be  added  to  it,  to  defeat  the  operation  of  the  statute  of  limitations. 


534  STATUTES   OF   LIMITATION.  [CHAP.  XIX. 

while,  as  previously  stated,  the  fact  that  an  infant  has  a  guardian 
who  might  maintain  an  action  for  a  claim  does  not  change  the 
rule,1-  yet  the  minority  of  a  claimant  at  the  time  when  the  claim 
accrued  will  not  bring  him  within  the  exception  of  the  statute,  if 
at  that  time  the  legal  right  of  action  upon  it  was  vested  in  a 
trustee  who  was  under  no  disability,  for  his  benefit.2  In  Ken- 
tucky, it  has  been  held  that  where  the  executor  has  a  right  of 
action  the  statute  will  not  be  prevented  from  running  by  reason 
of  the  disability  of  the  heir.3 

SEC.  239.  Insane  Persons,  Non  Compotes,  &c.  —  Where  the 
statute  excepts  from  its  operation  claims  in  favor  of  a  person  who 
is  insane,  it  does  not  begin  to  run  until  he  or  she  is  restored  to 
sanity  and  knowledge  of  the  existence  of  the  claim.4  (a)     Persons 

Stevens  v.  Bomar,  9  Humph.  (Tenn.)  546.  Il  is  no  answer  lo  a  plea  of  the 
statute  of  limitations  to  a  writ  of  error,  that  within  five  years  next  after  one  of 
the  plaintiffs  had  arrived  at  full  age  the  writ  was  prosecuted.  Shannon  v. 
Dunn,  S  Blackf.  (Ind.)  1S2. 

1  Bacon  v.  Gray,  23  Miss.  140. 

5  In  Wilmerding  v.  Russ,  33  Conn.  67,  Hinman,  J.,  said:  "  The  petitioners  say 
that  the  fact  that  they  were  minors  brings  them  within  the  exception  of  the  stat- 
ute. But  the  residuary  estate  is,  by  the  will,  vested  in  the  trustees,  who  were 
under  no  legal  disabilities,  and  this  is  a  sufficient  answer  to  the  claim."  Wych 
v.  East  India  Co.,  3  P.  Wms.  309.  The  same  rule  prevails  where  the  legal  title 
to  land  is  vested  in  a  trustee.  Brady  v.  Walters,  55  Ga.  25.  In  Hall  v.  Bum- 
stead,  20  Pick.  (Mass.)  2,  it  was  held  that  the  statute  limiting  suits  against 
executors  and  administrators  ■  is  an  absolute  bar,  and  that  the  fact  that  the 
plaintiff  was  under  the  disability  of  infancy  during  the  time  that  the  estate  of 
the  deceased  was  under  administration  will  not  prevent  his  claim  from  being 
barred  by  the  lapse  of  the  period  fixed  for  limiting  such  actions.  In  this  case, 
it  is  proper  to  state  that  actual  fraud  on  the  part  of  the  executor  was  not  shown, 
and,  amounting  only  to  constructive  fraud,  it  was  held  that  the  statute  applied. 
See  Robinson  v.  Hook,  4  Mas.  (U.  S.)  151;  Bickford  v.  Wade,  19  Ves.  88;  Murray 
v.  Coster,  20  Johns.  (N.  Y.)  576.  In  Howell  v.  Leavitt,  95  N.  Y.  617,  it  was  held 
that  possession  of  real  estate  by  a  mortgagee,  acquired  by  force  or  fraud, 
against  the  will  and  consent  of  the  owner,  and  without  color  of  legal  authority, 
is  not  a  defense  to  an  action  or  ejectment  brought  by  such  owner. 

3  Darnall  v.  Adams,  13  B.  Mon.  (Ky.)  273. 

1  Dicken  v.  Johnson,  7  Ga.  484;  Clark  v.  Trail,  1  Met.  (Ky.)  35;  Little  v. 
Downing,  37  N.  H.  355.      In  Sasser  v.  Davis,  24  Tex.  656,  it  was  held  that  the 

(a)  See  De  Arnaud  v.  United  States,  lapse  of  time  while  they  continue  the 

il   1   .  S   4.83;  Rugan  v.  Sabin,  53  Fed.  fraud,  if   the   disability  continues,  and 

Rep.   pr;   Grady   v.   Wilson.  115   N.  C.  the  laches  of  an  imbecile's  next  friend 

344.;  Moore  "•.  Armstrong,   j6  Am.  Dec.  in  failing  to  brim*  suit  promptly  is  not 

i,n.     Those  who  fraudulently  deal  imputable  to  him.     Kidder  v.  Houston 

vii  h  the  estate  of  a  lunatic  or  idiot  can  (59  N.  J.  Eq.),  47  Atl.  336. 
<■   no   advantage   from    the    mere 


§  240.]  DISABILITIES   IN    PERSONAL   ACTIONS.  535 

who  are  deaf  and  dumb,  and  have  been  so  from  birth,  are  prima 
facie  non  compos,  and  the  statute  of  limitations,  where  that  class 
are  excepted,  does  not  run  against  them,  unless  they  are  shown 
to  have  sufficient  intelligence  to  know  and  comprehend  their 
legal  rights  and  liabilities.1  In  order  to  be  effectual  to  suspend 
the  operation  of  the  statute,  the  insanity  must  have  existed  at  the 
time  when  the  right  of  action  first  accrued;2  and  if  the  statute 
began  to  run  upon  the  claim  before  the  plaintiff  became  non 
■.compos,  its  operation  is  not  checked  because  he  subsequently 
became  insane.3  Thus,  in  a  case  where,  at  the  time  a  cause  of 
action  accrued,  the  person  in  whose  favor  it  existed  was  insane, 
it  was  held  that  the  statute  did  not  begin  to  run  during  the 
existence  of  such  insanity,  but  that  immediately  upon  his  restora- 
tion to  sanity  the  statute  attached  to  the  claim,  and  having  once 
begun  to  run  thereon,  it  was  not  checked  by  the  circumstance 
that  before  the  bar  became  complete  his  lunacy  returned.4 

Sec.  240.  Coverture At  the  common  law  a  woman's  iden- 
tity, both  legal  and  otherwise,  was  merged  in  the  husband  imme- 
diately upon  her  marriage.  She  could  neither  sue  or  be  sued, 
nor  exercise  any  of  the  legal  rights  which  she  possessed  while  a 
feme  sole,  consequently  so  long  as  coverture  existed  she  was  under 
even  greater  legal  disabilities  than  an  infant ;  and  this  anomalous 
and  unwarranted  legal  position  led  to  the  creation  of  an  exception 
in  her  favor  in  the  statute  of  limitations  to  save  legal  rights  that 
existed  in  her  behalf  at  the  time  of  coverture,  or  which  accrued 
to  her  subsequently;  and  this  exception  still  exists  in  most  of 
our  statutes,  although  in  very  many  of  them  the  rights  of  married 
women  have  been  greatly  extended  by  statute,  and  she  is  clothed 

statute  requiring  all  actions  for  personal  injury  to  be  brought  within  one  year, 
did  not  apply  to  a  case  where  by  the  injury  the  person  injured  was  rendered 
insane,  and  his  insanity  prevented  him  from  originating  a  suit  within  the 
period  named. 

1  Oliver  v.  Berry,  53  Me.  206. 

5  In  Allis  v.  Moore,  2  Allen  (Mass.)  306,  it  was  held  that,  if  the  owner  of  land 
has  been  disseised,  his  subsequent  insanity  does  not  prevent  the  disseisor's 
title  from  maturing  by  an  adverse  occupancy  for  the  statutory  period.  See  also 
Adamson  v.  Smith,  2  Mill  (S.  C.)  Const.  26q,  where  it  was  held  that  the  statute 
was  not  checked  in  its  operation  on  a  note  because,  after  it  became  due,  the 
,p3yee  became  non  compos. 

3  Clark  v.  Trail,  supra;  Allis  v.  Moore,  supra;  Adamson  v.  Smith,  supra. 

4  Clark  v.  Trail,  supra. 


536  STATUTES    OF   LIMITATION.  [CHAP.   XIX.. 

with  the  power  to  sue  and  be  sued  the  same  as  a  feme  sole}  In 
most  of  the  statutes  the  exception  of  married  women  is  made  in 
terms,  and  even  where  the  exception  is  simply  of  "  persons  under 
legal  disabilities,"  it  is  held  to  include  married  women.2 (a)  In 
those  States  in  which  married  women  are  excepted  from  the 
operation  of  the  statute,  the  circumstance  that  they  are  by  statute 
clothed  with  the  power  of  suing  and  being  sued,  or  even  endowed 
with  all  the  privileges,  rights,  and  liabilities  of  a  feme  sole,  would 
hardly  seem  to  be  sufficient  to  change  the  rule,  or  deprive  them 
of  the  benefits  of  the  disability  if  they  choose  to  avail  themselves 
of  it;  and  the  circumstance  that  the  legislature  has  clothed  them 
with  these  rights,  without  making  any  change  in  the  statute  of 
limitations  with  respect  to  them,  indicates  an  intention  on  the 
part  of  the  legislature  that  they  shall  still  remain  within  the 
exception  contained  therein.  This  is  still  unquestionably  the 
rule  in  reference  to  all  matters  where  the  wife  is  not  capaci- 
tated to  sue  or  be  sued;  but  it  is  held  in  California3  and  in 
Maine4  that  in  cases  where  a  married  woman  is  authorized  by 
statute  to  sue  alone,  the  saving  in  the  statute  of  limitations  is 
abrogated  as  to  her.  But  in  New  York 5  it  is  held  that  the 
removal  of  a  married  woman's  disability  to  sue  does  not  deprive 
her  of  the  benefit  of  the  saving  clause  in  the  statute,  unless,  as  is 
now  the  case  in  that  State,  the  statute  omits  her  from  the  saving 
clause;  and  in  Massachusetts  the  saving  clause  is  extended  to 
infants,  insane  persons,  and  persons  "disabled  by  marriage,"5 
which  would  seem  to  apply  only  to  cases  where,  by  coverture,  a 
woman  cannot  sue.  It  may  be  stated  as  a  general  proposition 
that  where  coverture  is  made  a  disability,  the  statute  of  limita- 
tions never  begins  to  run  against  a  married  woman  while  she  is 

1  Morrison  v.  Norman.  44  111.  477. 

-  liauman  v.  Grubbs,  26  Ind.  419;  Hawkins  v.  Hawkins,  28  id.  66.  Bui 
qn»rr,\  If  a  married  woman  is  given  the  right  to  sue  and  be  sued,  does  not  this 
take  her  out  of  the  exception  of  such  a  clause? 

3  Cameron  v.  Smith,  50  Cal.  303.  In  Massachusetts,  Gen.  Stat.  1882,  the 
saving  is  restricted  to  those  "  disabled  by  marriage." 

*  Brown  ?/.  Cousens,  51  Me.  301. 

'Clark  v.  McCann,  iS  Hun  (N.  Y.)  13. 

8  2  Krv.  Slat.,  p.  1115,  §  9. 

(a)  As  to  coverture,  see  also  Stubble-  Fink  v.  Campbell,   70  Fed.  Rep.  664; 

field    v,    Menzies,    11    Fed.    Rep.    2G8;  Moore  v.  Armstrong,  36  Am.  Dec.  63,. 

Pirtee  v.   Thomas,   id.  769;    Elder   •'.  '»>,  n. 
M  CI  iskey,  70  id.  529,  163  U.  S.  6S5; 


§  240.]  DISABILITIES   IN    PERSONAL   ACTIONS.  537 

covert.1  But  if  the  statute  had  begun  to  run  upon  her  claim 
before  her  marriage,  her  subsequent  coverture  does  not  suspend 
its  operation.2     But  while  as  to  the  wife  the  operation  of  the 

•Jones  v.  Reeves,  6  Rich.  (S.  C.)  132;  Sledge  v.  Clopton,  6  Ala.  589;  Wilson 
v.  Wilson,  36  Cal.  447;  McLane  v.  Moore,  6  Jones  (N.  C.)  L,  520;  Michan  v. 
Wyatt,  21  Ala.  813;  McLean  v.  Jackson,  12  Ired.  (N.  C.)  149;  Fatheree  v. 
Fletcher,  31  Miss.  265;  Fearn  v.  Shirley,  3  id.  301;  Meegan  7/.  Boyle,  19  Hoiv. 
(U.  S  )  130;  Gage  v.  Smith,  27  Conn.  70;  Watson  v.  Watson,  ro  id.  77;  Drennen 
v.  Walker,  21  Ark.  539;  Caldwell  v.  Black,  5  Ired.  (N.  C.)  L.  463;  Randall  v. 
Raab,  2  Abb.  Pr.  (N.  Y.)  307;  Willson  v.  Betts,  4  Den.  (N.  Y.)  2or;  Dunham  v. 
Sage,  52  N.  Y.  229.  The  statute  of  limitations  does  not  run  against  a  married 
woman,  to  whom  property  had  been  left  in  trust,  after  her  coverture,  she  being 
within  the  exception  in  the  statute  in  favor  of  femes  covert,  in  a  case  where  she 
and  her  husband  are  suing  in  equity  for  the  recovery  of  the  property.  Flynt 
v.  Hatchett,  9  Ga.  328.  In  Manchester  v.  Tibbetts,  121  N.  Y.  219,  it  was  held 
that  when  a  wife  establishes  an  indebtedness  of  her  husband  to  her,  she  can 
enforce  a  security  given  for  payment  of  the  debt,  like  any  other  creditor.  As 
against  such  an  indebtedness,  the  husband  is  not  obliged,  by  any  duty  he  owes 
his  other  creditors,  to  interpose  the  stalute  of  limitations  as  a  defense. 

8  Wellborn  v.  Weaver,  17  Ga.  267;  Mitchell  v.  Berry,  1  Met  (Ky.)  602;  Killian 
v.  Watt,  3  Murph.  (M.  C.)  167.      In  Becton  v.  Alexander,  27  Tex.  659,  it  was  held 
thai  the  fact  that  some  of  the  plaintiffs  are  femes  covert  and  infants,  at  the  com- 
mencement of  the  suit,  does  not  deprive  the  defendants  of  the  benefits  of  their 
limitation  as  to  the  others,  and   that  to  prevent  it  from  being  operative  against 
the  femes  covert,  etc.,  it  must   be  shown   that  the  disability    preceded    the   com- 
mencement of  the  action.      See  also   Pendergrast    v.    Gullatt,   10   Ga.    218.     In 
Killian  v.  Watt,  supra,  the  court  held   thai  where  a  cause   of  action  accrues  to 
the  wife  before  marriage,  her   subsequent  coverture  does  not  bar  the  statute  of 
limitations.     This   ruling    follows    the   settled   rule   that   where  the  statute  has 
once  begun  to  run,  no  subsequent  disability  can  suspend  its  operation.     Cole  v 
Runnells,  6  Tex.  272;   Chevallier  v.   Durst,  6  id.  239;   Den  v.  Richards,  15  N.  J 
L.  317;   Peck  v.  Randall,  1  Johns.  (N.  Y.)  165;  Lynch  v.   Cox,  23  Penn.  St.  265 
Pearce  v.  [louse.  Term  Rep.  (N.  C  )  305;  McCoy  v.  Nichols,  5  Miss.  31;   Fewel 
v.    Collins,   3   Brev.  (S.   C.)  2S6;    Fitzhugh  v.   Anderson,   2   H.   &   M.   (Va.)  289 
Faysoux  v.  Prather,  r   N.  &   McC.  (S.  C.)  296;   Parsons  v.   M'Cracken,  9  Leigh 
(Va.)  495;  Stowel   v.    Zouch,     1    Plowd.    353.7;   Duroure   v.   Jones,  4  T.  R.  300 
Cotterell   v.   Dutton,  4  Taunt.  826;   Bunce  v.    Walcott,  2  Conn.  27.     When   the 
statute  has  once  commenced  to  run,  it  runs  over  all  subsequent  disabilities  and 
intermediate  acts  and   events,  and  there  is  nc  distinction   between  a  disability 
or  im  pediment  on  the  part  of  the  plaintiff,  and  where  it  arises  from  some  change 
or  event  that  has  happened  to  the  debtor;  or,  in  this  respect,  between  a  volun- 
tary and  an  involuntary  disability.     Dekay  v.  Darrah,  14  N.  J.  L.  2S8.     Where 
an  adverse  possession  commenced  during  the  life  of  the  ancestor,  it  is  not  sus- 
pended by  the  litle  descending  to  a  feme  covert.     Jackson  v.  Robins,  15  Johns. 
(N.  Y.)  169;   Fleming  v.   Griswold,   3   Hill  (N.  Y.)  85.     This  question  was  con- 
sidered in  Griswold  v.  Butler,  3  Conn.  227,  and  the  rule  established,  that  there 
is  no  saving  in   the  statute  of  limitations    for  any  disability  in   the   heir  super- 
venient to  the  disability  of  the  person  10  whom  the  right  of  entry  first  accrued. 


538  STATUTES   OF   LIMITATION.  [CHAP.   XIX. 

statute  is  suspended,  yet  it  is  not,  on  that  account,  saved  to  the 
husband,  or  the  grantee  of  the  husband  and  wife,  as  to  rights 
which  he  acquires  in  the  wife's  property.1  The  rule  is,  that 
where  the  husband  sues  in  right  of  his  wife,  he  cannot  avail  him- 
self of  her  disability.2  The  disability  that  saves  a  claim  from  the 
operation  of  the  statute  is  of  a  personal  character,  and  can  only 
be  set  up  by  the  party  in  whose  favor  it  exists,  and  those  claim- 
ing under  him;3  nor  is  it  available  to  a  person  claiming  under 
such  disabled  person,  if  he  has,  at  all  times  since  the  disability 
accrued,  been  in  a  position  to  assert  and  enforce  the  right ;  and 
for  this  reason  the  husband  cannot  avail  himself  of  the  wife's 
disability  as  to  rights  which  he  acquired  by  coverture  over,  to, 
or  in  her  estate.4  But  this  must  be  understood  as  applying  only 
to  that  class  of  claims  which  the  husband  could  have  enforced 
during  coverture.5  If  the  wife's  property  is  taken  upon  execu- 
tion upon  her  husband's  debts,  or  illegally  sold,  the  statute  does 
not  begin  to  run  against  her  until  her  husband's  death;6  but  it 
begins  to  run  against  her  heirs  immediately  upon  her  death, 
except  as  to  such  property  as  by  law  the  husband  is  entitled  to  a 
life  estate  in.7  In  Pennsylvania8  it  was  held  that  where  a  sale 
of  land  on  execution  against  a  deceased  debtor  has  been  acqui- 

1  Carter  v.  Cantrell,  16  Ark.  154.  In  Gregg  v.  Tesson,  1  Black.  (U.  S.)  510, 
where  a  married  woman  was  the  owner  of  land  in  which,  by  force  of  the  law  of 
the  State,  her  husband  had  a  life  interest,  the  grantee  of  the  husband  and  wife 
was  not  saved  from  the  operation  of  the  statute  by  the  wife's  disability,  because 
he  might  have  brought  ejectment  counting  on  his  interest  immediately  upon 
acquiring  the  right.      McDowell  v.  Potter,  8  Penn.  St.  189. 

s  McDowell  v.  Potter,  8  Penn.  St.  189. 

3  Watson  v.  Kelly,  16  N.  J.  L.  517;  Thorpe  v.  Corwin,  20  id.  311. 

4  Gregg  v.  Tesson,  supra.  In  Carter  v.  Cantrell,  16  Ark.  154,  it  was  held  that 
a  right  of  action  for  the  recovery  of  slaves  belonging  to  the  wife  is  not,  on 
account  of  the  wife's  disability  to  sue  for  the  same  in  her  own  name,  saved  to 
the  husband  in  an  action  by  husband  and  wife,  after  the  statute  would  have 
otherwise  attached. 

6  State  v.  l.aylon,  4  Harr.  (Del.)  8. 

"McDonald  v.  McGuire,  8  Tex.  361;  Meanor  v.  Hamilton,  27  Penn.  St.  137; 
Culler  v,  Motzer,  13  S.  &  R.  (Penn.)  356.  If  a  married  woman  loans  money  to 
her  husband  during  coverture,  the  statute  does  not  run  upon  her  claim  until  his 
death.  Towers  v.  Ilayner,  3  Whart.  (Penn.)  18.  And  the  same  rule  prevails 
when  ians  money  to  a  firm  of   which   the  husband  is  a  member.     Kutz's 

A ppeal,  40  Penn.  St.  90. 

'Carpenter  v.  Schermcrhorn,  2  Harb.  Ch.  (N.  Y.)  314;  Marple  v.  Myers,  12 
P    hi.  St.  122,   Lenhart  v.  Re-am,  ^4.  id.  59;   Henry  v.  Carson,  59  id.  297. 

1  M'-arior  v.  Hamilton,  supra. 


§  240.]  DISABILITIES    IN    PERSONAL   ACTIONS.  539 

esced  in  for  thirty  or  forty  years  by  the  family  of  the  decedent, 
a  jury  should  not  disturb  the  purchaser's  title,  except  upon  the 
most  overwhelming  proof  of  fraud,  and  that,  although  the  disa- 
bilities of  coverture  or  infancy  have  not  been  removed  long  enough 
to  make  the  statute  bar  complete,  yet  that  the  long  silence  of 
husbands  and  guardians  is  entitled  to  weight  as  evidence  of  such 
an  acquiescence  as  to  protect  the  purchaser's  title.  But  it  h 
hardly  believed  that  this  doctrine  can  stand.  To  permit  the  cir- 
cumstance that  a  husband  or  guardian  had  acquiesced  in  an 
improper  interference  with  the  property  of  the  ward,  to  overcome 
the  protection  which  the  statute  is  intended  to  afford  to  persons 
under  such  disabilities,  is  an  assumption  by  the  court  of  authority 
to  abrogate  the  clear  and  unequivocal  provisions  of  a  statute,  and 
that,  too,  for  the  very  reasons  that  led  to  the  adoption  of  the 
statute  itself.1  In  Ohio,  it  has  been  held  that  equity  will  refuse 
relief  in  a  case  where  a  part  of  the  applicants  for  relief  are  under 
no  disability,  even  though  some  of  them  are  under  the  disability 
of  coverture,  where  they  are  all  adults,  and  have  slept  upon  their 
rights  for  so  many  years  that  the  granting  of  the  relief  prayed  for 
would  operate  as  a  fraud  upon  the  defendants.  But  in  such  a 
case  the  parties  under  disability,  upon  the  removal  thereof,  can 
stand  upon  their  legal  rights.2  In  New  York,  married  women 
being  given  control  over  their  own  property,  and  the  right  to  sue 
in  their  own  name,  no  provision  is  made  saving  their  rights  from 
the  operation  of  the  statute;  and  the  repeal  of  the  saving  clause 
in  their  favor  is  held  to  apply  to  claims  existing  before  the  repeal. 
Thus,  where  a  woman,  married  in  November,  1857,  when  a  bond 
and  mortgage  became  due  to  her,  neglected  to  bring  an  action 
thereon  until  December,  1877,  the  saving  clause  as  to  married 
women  having  been  omitted  frcm  the  statute  in  1870,  it  was  held 
that  her  remedy  was  barred  by  the  lapse  of  twenty  years.3  In 
Wisconsin,  no  exception  is  made  in  favor  of  married  women,  the 
statute  of  that  State  in  this  respect  being  the  same  as  in  New 
York.  In  Iowa,  coverture  is  not  within  the  saving  clause.  In 
Massachusetts,  the  statute  only  saves  the  rights  of  married  women 
where  they  are  disabled  by  coverture;  that  is,  where  they  are  not 
clothed  with  authority  to  prosecute  their  rights  by  suits  in  their 

1  Piatt  v.  Smith,  12  Ohio  St.  561. 

'  Hansford  v.  Elliott,  g  Leigh  (Va.)  79. 

a  Acker  v.  Acker,  81  N.  Y.  143,  reversing  the  same  case  in  16  Hun  (N.  Y.)  173. 


540  STATUTES    OF    LIMITATION.  [CHAP.    XIX. 

own  name.  In  California  and  Indiana,  married  women  are  not 
within  the  saving  clause  of  the  statute,  except  as  to  those  rights 
for  the  enforcement  of  which  the  husband  is  a  necessary  party. 
In  West  Virginia,  coverture  is  within  the  exception  of  the  statute, 
except  in  those  cases  where  a  married  woman  holds  lands  as  her 
sole  and  separate  property.  In  all  the  other  States,  coverture  is 
within  the  saving  clause  of  the  statute  ;  and  the  circumstance  that 
a  married  woman  is  clothed  with  the  power  to  sue  in  her  own 
name  does  not  defeat  the  exception,  because,  although  she  may 
not  be  within  the  reason  of  the  statute,  she  is  nevertheless  within 
its  letter,  and  the  legislature  not  having  seen  fit  to  repeal  the 
saving  clause  as  to  her,  the  courts  have  no  power  to  do  so. 

SEC.  241.  Imprisonment. —  Under  the  statute  of  James,  the 
disability  arising  from  imprisonment  relates  to  a  restraint  of  one's 
liberty  under  process  or  color  of  law,  or  an  involuntary  restraint 
that  prevents  the  person  from  fully  availing  himself  of  the  reme- 
dies provided  for  the  enforcement  of  his  legal  rights,  (a)  Thus, 
in  this  country  it  has  been  held  that  a  person  held  in  slavery  is 
imprisoned,  within  the  meaning  cf  the  term  as  used  in  these 
statutes,1  and  that  the  disability  does  not  cease  until  he  is  emanci- 
pated.2 In  New  York,  the  saving  is  restricted  to  persons 
imprisoned  on  a  criminal  charge,  or  in  execution  under  the 
sentence  of  a  criminal  court  for  a  term  less  than  life;  and  the 
provision  is  the  same  in  Wisconsin,  Missouri,  California,  Oregon, 
Minnesota,  Nevada,  North  Carolina,  South  Carolina,  Arizona, 
Dakota,  Idaho,  Montana,  and  Utah;  while  in  Maine,  Vermont, 
Massachusetts,  Rhode  Island,  Alabama,  Colorado,  Florida, 
Georgia,  Ohio,  Pennsylvania,  Maryland,  Nebraska,  Texas,  and 
Wyoming  this  disability  applies  to  any  person  "imprisoned,"  and 
therefore  applying  in  all  those  instances  to  which  the  statute  of 
James  applied,  and  embracing  persons  imprisoned  upon  civil  as 
well  as  criminal  processes,  or  deprived  of  their  liberty  by  any  pro- 
of law  or  statute.  In  Illinois,  in  order  to  be  within  the  sav- 
ing of  the  statute,  the  person  must  be  imprisoned  upon  a  criminal 
charge;    in    Michigan,    in    the  State    prison;    and    in  Arkansas, 

1  Matilda  v.  Crenshaw,  4  Yerp.  (Tenn.)  299. 
''  Price  v.  Slaughter,  1  Cin.  (Ohio)  429. 

la)  See  State  v.  Calhoun,  50  Kansas,  523;  Moore   v.  Armstrong,  36  Am.  Dec. 
63,  72,  n. 


§§  242,  243-]    DISABILITIES   IN    PERSONAL  ACTIONS.  54I 

imprisoned  "beyond  the  limits  of  the  State."  In  Connecticut, 
New  Hampshire,  Iowa,  Kansas,  New  Jersey,  Kentucky,  Missis- 
sippi, Tennessee,  Delaware,  Virginia,  West  Virginia,  and  New 
Mexico,  imprisonment  is  not  recognized  as  constituting  a  disa- 
bility, and  no  saving  exists  in  favor  of  persons  restrained  of  their 
liberty. 

In  those  States  in  which  imprisonment  constitutes  a  disability, 
the  circumstance  that  the  plaintiff  might  have  commenced  an 
action  upon  a  claim  existing  at  that  time,  but  did  not,  does  not 
deprive  him  of  the  saving  of  the  statute,1  as  it  is  well  settled  that 
the  statute  does  not  prevent  a  person  under  a  disability  from 
suing  if  he  elects  to  do  so;2  nor  is  he  obliged  to  sue  simply 
because  he  can ;  nor  even  if  he  should  bring  an  action  while  the 
disability  existed,  and  failed  in  it  upon  technical  grounds,  would 
he  be  deprived  of  the  saving  of  the  statute  when  the  disability  is 
removed. 

SEC.  242.  Alien  Enemy.  —  In  Maine,  Vermont,  Massachusetts, 
New  York,  North  Carolina,  Kentucky,  Missouri,  South  Carolina, 
Michigan,  Wisconsin,  California,  Oregon,  Minnesota,  Alabama, 
Nevada,  Arizona,  Dakota,  Idaho,  and  Utah,  the  statutes  contain 
an  exception  in  favor  of  a  person  who  is  a  citizen  of  a  country  at 
war  with  the  United  States,  providing  that  during  the  continu- 
ance of  such  hostilities  the  statute  shall  be  suspended  and  not 
considered  as  a  part  of  the  period  limited  for  the  commencement 
of  an  action.  In  Nevada,  it  is  provided,  however,  that  a  citizen 
of  a  State  in  rebellion  against  the  United  States  government 
shall  not  be  treated  as  an  alien.  None  of  the  statutes  of  the 
other  States  contain  this  exception,  and  consequently  in  none 
of  the  other  States  is  there  any  saving  in  favor  of  an  alien 
enemy,  (a) 

Sec.  243.  Injunction. —  Except  in  those  States  where  a  saving 
is  expressly  made  in  favor  of  parties,  where  the  commencement 
of  an  action  is  enjoined,  the  fact  that  an  injunction  has  been  pro- 

1  Piggott  v.  Rush,  4  Ad.  &  El.  912. 
'Chandler  v.  Villett,  2  Saund.  117^,  120. 

(a)  By  the  strict  rule  of  the  common  ute  of  limitations,  though  not  specified 

law,  where   the   statute   makes    no  ex-  therein,    though  this  is   not  allowed  to 

ception,     the    courts    can    make    none,  extend   beyond   necessity  arising  from 

Amy    v.    Watertown,    130    U.    S.    320.  war  or  death.      130  U.  S.  326;   Murray 

But  a  disability"  happening  by  an   in  v.  Chicago,  &  N.   W.   Ry.  Co.,  92  Fed. 

evitable  necessity  "  is  now  recognized  Rep.  868,  871;  Hill  v.  Phillips,  14  R.  I. 

as  constituting  an  exception  to  the  stat-  93.     See  supra,  §  6,  n.  (a). 


542  STATUTES   OF   LIMITATION.  [CHAP.   XIX.. 

cured  preventing  the  bringing  of  an  action  upon  a  certain  claim 
does  not  save  it  from  the  operation  of  the  statute ;  nor  can  a  court 
of  equity  make  any  order  which  will  prevent  the  running  of  the 
statute  during  such  period,  but  the  remedy  of  the  party  is 
through  an  application  to  the  court  for  an  injunction  to  restrain 
the  party  from  pleading  the  statute.1  But  in  Vermont,  New 
York,  Arkansas,  Iowa,  Illinois,  Kentucky,  Missouri,  Minnesota, 
North  Carolina,  and  South  Carolina,  it  is  provided  that,  when  the 
commencement  of  an  action  is  enjoined,  the  time  during  which 
the  injunction  "is  in  force"  shall  not  be  deemed  a  part  of  the 
time  limited  for  the  commencement  of  the  action.  In  Alabama, 
California,  Oregon,  Wisconsin,  Nevada,  Arizona,  Dakota,  Idaho, 
Montana,  and  Utah,  the  same  exception  is  made  not  only  where 
the  commencement  of  an  action  is  prevented  by  injunction,  but 
also  where  it  is  prevented  by  any  statutory  prohibition.  In 
Mississippi,  the  same  provision  is  made  where  the  commence- 
ment of  an  action  is  prohibited  by  law,  or  restrained  or  enjoined 
by  the  order,  decree,  or  process  of  any  court  of  the  State.  In 
Michigan,  no  exception  is  made  where  an  action  is  enjoined,  but 
it  is  provided  that  the  time  during  which  any  case  in  chancery, 
commenced  by  any  debtor,  has  or  may  be  pending  and  unde- 
termined, shall  not  be  computed  as  constituting  any  part  of  the 
time  limited,  as  to  the  particular  debt  or  subject-matter  of  such 
proceeding  in  chancery. 

1  Barker  v.  Millard,  16  Wend.  (N.  Y.)  572;  Robertson  v.  Alford,  21  Miss.  509; 
Ingraham  v.  Regan,  23  Miss.  213;  Rice  v.  Lovvan.  2  Bibb  (Ky.)  149;  Doughty 
v.  Doughty,  10  N.  J.  Eq.  34.  In  Dekay  v.  Darrah,  14  N.  J.  T..  288,  it  was  held 
that,  while  the  circumstance  that  the  bringing  of  an  action  has  been  enjoined 
will  not  save  the  statute  as  to  the  claim  involved,  yet  lhat  a  court  of  equity 
under  such  circumstances  may  enjoin  a  parly  from  setting  up  the  statute  in 
bar  of  the  action.  In  Van  Wagonen  v.  Terpenning,  122  N.  Y.  222.  46  Hun,  423, 
it  was  held  that  an  injunction  order  will  not  be  construed  to  restrain  acts  bene- 
ficial or  not  injurious  to  the  rights  of  the  party  in  whose  behalf  it  was  obtained, 
unless  its  words  clearly  have  that  important  effect;  and  that  the  injunction  does. 
not  stay  the  commencement  of  the  action,  as  it  did  not  deny  to  plaintiff  the  right 
to  protect  his  possession  of  the  property  against  the  acts  of  others,  and  so  it  did 
not,  under  the  Code,  suspend  the  operation  of  the  statute.  Fincke  v.  Funke, 
2-  Hun,  616;  Stubbs  v  Ripley,  39  id.  626;  McQueen  v.  Babcock,  41  Barb.  337;  3 
Keyes,  428;  3  Abb.  App.  Dec.  129,  distinguished.  In  Brehm  v.  Mayor,  104 
N.  V.  [86,  where  the  plaintiff  was  prohibited  from  bringing  suit  until  after  the 
lapse  of  thirty  days  from  the  presentation  of  the  claim,  the  running  of  the 
statute  was  held  suspended  during  the  thirty  days.  See  Dickinson  v.  Mayor,, 
etc.,  92  N.  Y.  584. 


§  244-]  DISABILITIES   IN    PERSONAL   ACTIONS.  543 

It  will  be  noticed  by  the  language  of  these  statutes  that  the 
suspension  only  exists  while  the  injunction  is  in  force,  therefore 
the  circumstance  that  an  application  has  been  made  for  an  injunc- 
tion, and  is  pending,  will  not  save  the  statute,  whether  the 
injunction  is  or  is  not  subsequently  granted;  and  if  the  statute 
runs  upon  a  claim  while  a  petition  for  an  injunction  is  pending, 
but  before  it  is  granted  or  denied,  the  claim  is  barred,  as  the  sus- 
pension exists  only  while  an  injunction  is  actually  in  force,  (a) 

SEC.  244.  Absence  of  Defendant  from  State,  Statutory  Provi- 
sions as  to Tn  several  of  the  States  the  statute  contains  a  pro- 
vision that  if  at  the  time  a  cause  of  action  accrues  against  a  person 
he  shall  be  out  of  the  State,  the  action  may  be  commenced 
within  the  time  limited  after  he  comes  into  the  State,  and  that 
if  after  a  right  of  action  has  accrued  against  a  person  he  shall  be 
absent  from  and  reside  out  of  the  State,  the  time  of  his  absence 
shall  not  be  taken  as  any  part  of  the  time  limited  for  the  com- 
mencement of  the  action.  This  is  substantially  the  provision 
existing  in  the  statutes  of  Maine,  Vermont,  New  Hampshire,1 
Massachusetts,  (d)  Rhode  Island,   Florida,   Missouri,  Minnesota, 

1  In  New  Hampshire,  the  statutory  provision  is,  "  If  the  defendant  in  a  per- 
sonal action  was  absent  from  and  residing  out  of  the  Stale  at  the  time  the  cause 
of  action  accrued,  or  afterward,  the  time  of  such  absence  shall  be  excluded  in 
computing  the  time,"  etc.  Public  Stats.  (1891),  ch.  217,  §  8.  In  Vermont,  (Vt. 
Stats.  [1894],  §  )2ii),  in  addition  to  the  provisions  stated  in  the  text,  after  the 
words  "  is  absent  from  and  resides  out  of  the  State,"  the  provision,  "  and  has 
no  known  property  within  the  State  which  can  by  the  common  process  of  law 
be  attached,  the  time  of  his  absence  shall  not  be  taken  as  part  of  the  time  limited 
for  the  commencement  of  the  action;"  and  substantially  the  same  provision 
exists  in  Rhode  Island.     General  Laws  (1896),  ch.  234,  §  5. 

(a)  See  Davis  v.  Andrews,  88  Texas,  28  Wis.  21;  Lockhart  v.  Fessenich,   58 

524,  2  Am.  &  Eng.  Dec.  in  Eq.  587,  596,  Wis.  588;   Harner  v.   Price,    17   W.  Va. 

note.     That    a    resident   in    one    State  523;  Shriver  v.  Garrison,  30  W.  Va.  456. 

may  there  be  enjoined    from  inequita-  The  running  of  the  statute  of  limita- 

bly    relying   in   another   State    upon   a  tions  is  not  affected  by  the  appointment 

foreign     statute     of     limitations,    see  of  a  receiver;  nor  is  a  payment  by  such 

Eingartner    v.    Illinois    Steel    Co.    (94  receiver   an    acknowledgment    by    the 

Wis.    79),    59    Am.    St.    Rep.  859,   879,  debtor    which     suspends    the    statute. 

885,  n.     And  generally,  as  to  enjoining  White    v.    Meadowcroft,    91    111.    App. 

a  party  from  setting  up  the  statute  in  293. 

defense  in  cases  of  fraud  and  conceal-  {l>)  Under  Mass.   Pub.  Stats.,  c.  197, 

ment,  see  Holloway  v.  Appleget,  55  N.  §  n.  in  computing  the  period  of  limiia- 

J     Eq.    583;  12    Harvard   L.    Rev.   220.  lion,  the  time  cf   the  debtor's  absence 

As  to  enjoining   reliance   upon    a   con-  from  the  State  is   not  excluded  unless 

fession  of  judgment  when  the  original  it  is  of   such  a   character  as  to  work  a 

debt  is  barred  by  limitation,  see  Cheek  change    of    his    domicil.      Slocum     v. 

v.  Taylor,  22  Ga.  127;  Brown  v.  Parker,  Riley,  145  Mass.  370. 


544  STATUTES   OF   LIMITATION.  [CHAP.   XIX. 

South  Carolina,  (a)  California,  Michigan,  (6)  Nevada,  Tennessee, 
Arizona,  Dakota,  Idaho,  Montana,  Utah,  New  York,1  (r)  and 
Mississippi  as  to  the  second  clause  only,2  and  Texas  as  to  the  first 
clause  only.  In  New  Jersey,  the  provision  is  substantially  the 
same,  but  does  not  apply  in  all  actions.3  In  Alabama,  the  excep- 
tion is,  "when  any  person  is  absent  from  the  State  during  the 
period  within  which  a  suit  might  have  been  brought,"  such 
period  is  not  to  be  computed;4  and  substantially  the  same  pro- 
vision exists  in  Connecticut.5  In  Delaware,  the  provision  is  the 
same  as  in  Vermont,  except  that  if  at  the  time  when  the  cause 
of  action  accrues  the  defendant  is  out  of  the  State,  action  may  be 
commenced  within  the  time  limited  therefor  "after  such  person 
shall  come  into  the  State  in  such  manner  that,  by  reasonable  dili- 
gence, he  may  be  served  with  process.6  In  Georgia,  if  the  defend- 
ant removes  from  the  State  before  the  statute  has  run,  "  the  time 
of  his  absence  from  the  State,  and  until  he  returns  to  reside,"  is 
not  counted.7  In  Indiana,  the  time  during  which  the  defendant 
is  "a  non-res:dent  of  the  State  or  absent  on  public  business"  is 
not  counted;  but  if  he  resides  in  another  State  until  by  the  laws 

1  In  this  State,  however,  the  second  clause  of  the  statute,  section  401,  is 
extended  to  cases  where,  after  the  cause  of  action  has  accrued,  the  defendant 
"  remains  continuously  therefrom  (the  State)  for  the  space  of  one  year  or  more." 
Bliss's  Ann.  Code  (4th  ed.),  §  401.     In  Arizona,  see  Rev.  Stats.  (1887)  §  2324. 

2  In  this  State  the  language  of  the  statute  is,  "  If,  after  any  cause  of  action 
has  accrued  in  this  State,"  the  defendant"  be  absent  from  and  reside  cut  of 
the  State."     Code  (1892),  §  2748. 

3  2  New  Jersey  Gen.  Stats.  (1896),  p.  1975. 

4  Alabama  Civil  Code  (1S96),  §  2805. 
'Connecticut  Gen.  Stals.  (1888),  §  1384. 

*  Delaware  Amended  Code  (1893),  P-  889. 
'  2  Georgia  Code  (1895),  §  3783. 

(a)  See  Maccaw  v.  Crawley  (S.  C),  37  from    and   resides   without    the   State, 

S.  E.  934  and  remains  continuously  absent  there- 

(/>)  In    Michigan,  the   exception   in  3  from  for  the  space  of  one  year  or  more, 

Comp.  Laws,  1S97,  §  973^,  as  10  uom-  the  time   of  his  absence   is  noi   to   be 

menung  personal  actions,  when  the  de-  counted    as    part    of  the    time    limited 

fendant   is   absent  from   the  State,  ap-  for  the   commencement  of   the  action. 

plies  by  analogy  to  the  limitation  of  ten  Under  this  provision  it  is  held  that  both 

years   prescribed   by  section  9751  on  a  non-residence  and  continuous  absence 

judgment   creditor  as  to  enforcing   the  for  a  year  must  concur  in  order  to  stop 

judgment.     Newlove  v.   Pcnnock,   123  the  running  of    the   statute.      Hart  v. 

Mich.  260.  Kip,  148  N.  Y.  306;  Costello  v.  Downer, 

1   In   New  York,  section  401  of  the  46   N.   Y.  Supp.   713;  Com.  Trust  Co. 

was  amended   in  1888  by  provid-  v.    Wead,   69  id.    518.     See    Palmer  v. 

ing  th;u    if,  after  a  cause  of  action  has  Bennett,    I    N.    Y.    Ann.    Cases,     208, 

accrued    against   a  person,   he  departs  and  n. 


§  244-J  DISABILITIES    IN    PERSONAL   ACTIONS.  545 

thereof  the  statute  has  run,  he  may  set  the  bar  to  any  cause  of 
action  which  did  not  arise  in  Indiana.1  In  Iowa,  the  time  during 
which  a  person  is  a  non-resident  is  not  computed.2  In  Illinois, 
if  the  defendant  is  absent  from  the  State  when  the  cause  of  action 
accrues,  the  action  may  be  brought  within  the  time  limited  "  after 
his  coming  into  or  return  to  the  State;"  and  if  after  the  cause 
of  action  accrues,  he  departs  from  and  resides  out  of  the  State, 
the  time  of  his  absence  is  not  to  be  counted;3  but  this  section 
does  not  apply  as  to  when  at  the  time  the  cause  of  action  accrued 
or  shall  accrue,  neither  the  party  against  nor  in  favor  of  whom 
the  same  accrued  or  shall  accrue,  were  or  are  residents  of  the 
State,  (a)  In  Kentucky,4  if,  when  a  cause  of  action  accrues 
against  a  resident  of  the  State,  he  is  absent  therefrom,  the  period 
of  limitation  is  computed  from  his  return  to  the  State,  and  when 
a  resident  of  the  State  at  the  time  when  a  cause  of  action  accrues 
against  him,  "  by  departing  therefrom,  or  by  absconding  or  con- 
cealing himself,  or  by  any  other  indirect  means  obstructs  the 
prosecution  of  the  action,"  the  time  of  such  absence  or  obstruc- 
tion is  not  computed  as  any  part  of  the  period  within  which  the 
action  may  be  commenced.  In  Kansas,  if  when  a  cause  of  action 
accrues  against  a  person  he  is  out  of  the  State,  or  has  absconded 
or  concealed  himself,  the  statute  does  not  begin  to  run  "  until  he 
comes  into  the  State,  or  while  he  is  so  absconded  or  concealed ;  " 
and  if  he  leaves  the  State,  or  absconds  or  conceals  himself,  after 
the  cause  of  action  accrues,  the  time  of  his  absence  or  conceal- 
ment is  not  computed ; 5  and  this  is  substantially  the  provision  in 
Ohio.6  In  Oregon,  the  provision  is  virtually  the  same,  except 
that  it  does  not  expressly  apply  to  absconding  debtors.7  In 
Nebraska,  the  provision  is  the  same  as  in  Kansas;8  so,  also,  sub- 
stantially in  Wyoming.9      In  North  Carolina,   the  provision  is 

1  I  Indiana  Stats.  (1894),  §  298. 

5  Iowa  Ann.  Code  (1897),  §  3451. 

3  Illinois  Rev.  Stats.  (1899,  by  Hurd),  ch.  83,  §  18. 

4  Kentucky  Stats.  (1899,  by  Carroll),  §§  2531,  2532. 
*  Kansas  Gen.  Stats.  (1900,  by  Dassler),  §  4265. 

6  2  Ohio  Stats.  (1898,  by  Bates),  §  4989. 
1  1  Oregon  Laws  (1892,  by  Hill),  §  16. 

6  Nebraska  Compiled  Stats.  (1S99),  §  5610. 
9  Wyoming  Rev.  Stats.  (1899),  §  3463. 

(a)  Living  in  another  Slate  for  a  sufficient  time  to  there  bar  the  action  is  not  a 
defense  when  sued  on  returning  home.     Wooley  v.  Yarnell,  142  111.  442. 
[stats,  of  lim.  —  35] 


546  STATUTES    OF    LIMITATION.  [CHAP.    XIX. 

substantially  the  same  as  in  New  York,  except  that  it  expressly 
applies  to  "judgments  rendered  or  docketed,"  and  provides  for 
their  enforcement  after  the  debtor's  return  to  the  State.1  In 
Maryland,2  by  section  4  of  the  statute,  "  no  person  absenting 
himself  from  this  State,  or  that  shall  remove  from  county  to 
county  after  any  debt  contracted,  whereby  the  creditor  may  be 
at  an  uncertainty  of  finding  out  such  person  or  his  effects,  shall 
have  any  benefit  of  any  limitation  herein  contained ;  but  nothing 
contained  in  this  section  shall  debar  any  person  from  removing 
himself  or  family  from  one  county  to  another  for  his  convenience, 
or  shall  deprive  any  person  leaving  this  State,  for  the  time  herein 
limited,  of  the  benefit  thereof,  he  leaving  effects  sufficient  and 
known  for  the  payment  of  his  just  debts  in  the  hands  of  some 
person  who  will  assume  the  payment  thereof  to  his  creditors." 
And  by  section  5  "  if  any  person  liable  to  any  action  shall  be 
absent  out  of  the  State  at  the  time  when  the  cause  of  action  may 
arise  or  accrue  against  him,  he  shall  have  no  benefit  of  the  limita- 
tion herein  contained,  if  the  person  who  has  the  cause  of  action 
shall  commence  the  same  after  the  presence  in  this  State  of  the 
person  liable  thereto  within  the  terms  herein  limited."  In  Wis- 
consin, the  provision  is  the  same  as  in  Michigan,  except  that 
when  the  defendant  is  out  of  the  State  when  the  cause  of  action 
accrues  the  statute  does  not  begin  to  run  until  he  returns  or 
removes  to  the  State.3 (a)  In  Virginia,  'where  any  right  shall 
accrue  against  a  person  who  had  before  resided  in  the  State,  if 
such  person  shall,  by  departing  without  the  same,  or  by  abscond- 
ing or  concealing  himself,  or  by  any  other  indirect  ways  or  means 
obstruct  the  prosecution  of  such  right,  the  time  that  such 
obstruction  may  have  continued  shall  not  be  computed  as  any 
part  of  the  time  within  which  the  said  right  might  or  ought  to 
have  been  prosecuted.  But  this  section  shall  not  avail  against 
any  other  person  than  him  so  obstructed,  notwithstanding  another 
might  have  been  jointly  sued  with  him,  if  there  had  been  no  such 
ruction.  And  upon  a  contract  which  was  made  and  was  to 
be  performed  in  another  State  or  country,  by  a  person  who  then 
resided  therein,  no  action  shall  be  maintained  after  the  right  of 

1  North  Carolina  Code  (1892,  by  Clark),  §  162. 

1 2  Public  General  Laws  (1888),  art.  57. 

3  2  Wisconsin  Slats.  (1898,  by  Sanborn  &  Berryman),  §4231. 

(a)  See  Amy  v.   Watcrlown,  130   U.  S.  320,  326. 


§  245-]  DISABILITIES    IN    PERSONAL    ACTIONS.  547 

action  thereon  is  barred  by  the  laws  of  such  State  or  country;"  ' 
and  the  same  provision  exists  in  West  Virginia.2 (a)  In  New- 
Mexico,  if  a  defendant  removes  from  the  Territory  after  a  cause 
of  action  accrues,  the  time  he  is  so  a  non-resident  is  not  computed.3 
In  Louisiana,  Pennsylvania,  and  Colorado,  no  saving  exists 
because  of  the  defendant's  absence  from  the  State. 

Sec.  245.  What  constitutes  an  Absence  from  the  State.  (6)  — 
Under  the  statute  of  Maine,  and  the  other  States  whose  statutes 
accord  therewith,  it  is  an  important  question  whether  a  mere  tem- 
porary absence  of  the  defendant  when  the  right  of  action  accrued, 
as,  for  a  day  or  week,  constitutes  such  an  absence  as  prevents 
the  statute  from  attaching  in  his  favor;  and  it  may  be  said  that 
even  in  such  a  case  the  statute  does  not  begin  to  run  until  his 
return  to  the  State,  unless  the  circumstances  existing  during  the 
period  of  such  temporary  absence  were  such  that  the  service  of 
legal  process  against  him  could  have  been  made  so  that  the 
plaintiff  could  obtain  a  judgment  against  him  personally.4  The 
evident  purpose  of  this  clause  of  the  statute  is  to  insure  to  a 
plaintiff  the  full  statutory  period  within  which  to  commence  his 
action  against  a  defendant;  and  if  he  is  temporarily  absent  from 
the  State  when  the  right  of  action  accrues,  so  that  process  cannot 
at  that  time  be  served  upon  him,  so  that  the  plaintiff  cannot 
obtain  a  personal  judgment  against  him,  the  saving  clearly 
applies  in  favor  of  the  plaintiff;  and  this  construction  is  strength- 
ened by  the  language  of  the  succeeding  clause  in  the  same  sec- 
tion, which  provides  that  if,  after  a  right  of  action  has  accrued 
against  a  person,  "  he  shall  be  absent  from  and  reside  out  of  the 
State,"  the  time  of  such  absence  shall  not  be  taken  as  any  part 

1  Virginia  Code  (1887),  §  2933. 

2  West  Virginia  Code  (2d  ed.,  1891),  ch    104,  §  18. 

3  New  Mexico  Compiled  Laws  (1897),  §  2921. 

4  Ward  v.  Cole,  32  N.  H.  452;  Penley  v.  Waterhouse,  1  Iowa,  498;  Hill  v. 
Bellows,  15  Vt.  727;  Palmer  v.  Shaw,  16  Cal.  93;  Vanlandingham  v.  Huston,  9 
111.  125;  Chenot  v.  Lefevre,  8  id.  637. 

(a)  See    Fisher  v.    Hartley  (W.  Va.),  81  Md.  446;  Omaha   &    F.  Land  Co.  v. 

37  S.  E.  578.  Parker,  33  Neb.  775;  Latimer  v.  Trow- 

(/>)  See  Powell  v.  Koehler  (52  Ohio,  bridge,  52  S.  C.  103;  Wilson  v.  Dayferett 

103),  4oCent.  L.  J.  187.  and  n.;  Converse  88  Tex.  375;  Stanley  v.  Stanley  (Ohio), 

v.  Johnson,  146  Mass.  20:  Jenks  v.  Shaw,  8    L.    R.    A.    333,    and    n.;   Kerwin    v. 

99  Iowa,  604;  Turcott  v.  Railroad,  101  Sabin  (50  Minn.),   17   id.  225,  and   n.; 

Tenn.  102;  Mason  v.  Union   Mills  Co.,  Bates  v.  Cullum,  177  Penn.  St.  633. 


548  STATUTES   OF    LIMITATION.  [CHAP.   XIX. 

of  the  time  limited  for  the  commencement  of  an  action ;  thus 
clearly  showing  that  in  the  one  case  the  legislature  intended  that 
the  words  "if  he  shall  be  out  of  the  State  '  were  to  be  construed 
literally,  and  apply  to  a  temporary  absence,  while  in  the  other 
not  merely  absence  from,  but  residence  out  of,  the  State  by  the 
defendant  is  essential  to  save  the  plaintiff's  cause  of  action  from 
the  operation  of  the  staute.  In  some  States  this  language  is 
qualified  by  a  provision  which  deprives  the  plaintiff  of  the  saving, 
if  the  defendant  left  known  property  in  the  State  which,  by  the 
common  and  ordinary  processes  of  law,  could  be  attached;  and 
in  the  States  where  this  provision  exists,  where  the  defendant 
sets  up  the  statute  in  bar  of  an  action,  and  the  plaintiff  replies, 
the  defendant's  absence  when  the  cause  of  action  accrued,  or  his 
subsequent  absence  from  and  residence  out  of  the  State,  he  must 
also  negative  the  fact  that  the  defendant  had  any  known  property 
within  the  State  which,  by  the  common  and  ordinary  processes 
of  law,  could  be  attached,  or  his  replication  will  be  bad.1  In 
order  to  bar  a  claim,  the  defendant  must  show  that  he  has  resided 
in  the  State  for  the  full  statutory  period.3 

It  is  held  in  Virginia,  and  it  would  seem  that  this  is  the  general 
rule,  that  where  the  removal  from  the  State  antedates  the  con- 
tract sued  upon,  and  before  the  cause  of  action  accrued,  the  pro- 
vision as  to  absent  debtors  has  no  application.3 

It  is  not  the  domicil  but  the  residence  out  of  the  State  which 
suspends  the  statute.  Thus  in  a  New  York  case,4  where  the 
defendant  retained  his  domicil  in  New  York,  but  actually  resided 
for  three  years  in  New  Orleans,  it  was  held,  that  he  was  to  be 
deemed  a  non-resident  within  the  meaning  of  the  statute. 

1  In  Stevens  v.  Fisher,  30  Vt.  200,  a  replication  to  a  plea  of  the  statute  stated 

that  before  and  after  the  cause  of  action  accrued  the  defendant  was  out  of  the 

State,  and  that  the  action  was  brought  when  he  for  the  first  time  returned  into 

it,  which  was  within  eight  years  before  the  commencement  of  the  action.     It 

being  found  that  the  defendant  had  been,  since  and  before  the  action  was  com- 

•  ed,  a  resident  of  New  Vork,  it  was  held  that  the  replication  and  proof  were 

both  defective    b     ause  not  bringing  the  defendant  within  ail  the  exceptions  of 

t  ute. 

M  ihannan  v.  Ch  tpman,  13  Ala.  641. 

I  icklin       Carrington,  31  Gratt.  (Va.)  219;  Embrey  v.  Jemison,  131  U.  S.  336; 
>hr,  ■-•.'  Va.  35(5. 
1  1 1  1 11,  5   N.  Y.  422.     See  also  Weitkamp  v.  Loehr,  21  Jones  & 

S.  (N.  Y. )  7<)\  Burroughs  v.  Bloomer,  5  Denio  (N.  Y.)  532;  Cole  v.  Jessup,  10 
N.  Y.  96;  Satterthwaite  v.  Aberi  rombie,  23  Blatch.  308. 


§245  ]  DISABILITIES    IN    PERSONAL    ACTIONS.  549 

A  mere  temporary  absence  from  the  State  upon  business  or 
other  purposes,  without  any  intention  of  remaining  permanently, 
at  least  for  a  time,  is  not  regarded  as  an  absence  within  the  mean- 
ing of  the  term  as  implied  in  these  statutes.1  (a) 

The  law  gives  a  creditor  six  years  continued  presence  of  his 
debtor  within  the  State  after  his  cause  of  action  has  accrued  ; 
and  if  he  is  continuously  a  resident  of  the  State  for  the  statutory 
period  of  six  years  after  the  debt  is  created  and  becomes  due, 
the  statute  runs  in  his  favor,  although  he  is  living  under  an 
assumed  name  and  purposely  conceals  himself.2 

The  question  what  constitutes  a  resident  is  one  which  has  been 
often  considered  by  the  courts,  and   upon  which  no  definite  rule 

1  In  re  Rigley,  S  Wend.  (N.  Y.)  134.;  Frost  v.  Brisbin,  19  Wend.  (N.  Y.)  ti; 
Armfield  v.  Moore,  97  N.  C.  34;  Boardman  v.  House,  iS  Wend.  (N.  Y.)  512; 
Tomes  v.  Barney,  35  Fed.  Rep.  112.  But  in  Tennessee  under  the  code  the  rule 
is  otherwise.  Kempe  v.  Bader,  86  Tenn.  189.  In  Barney  v.  Oelrichs,  138  U.  S. 
529,  it  was  held  that  the  words  "reside  out  of  the  State"  in  section  100  of  ihe 
New  York  statute  of  limitations,  must  be  taken  to  mean  the  taking  up  of  an 
actual  abode  or  dwelling-place  elsewhere,  and  not  a  mere  temporary  sojourn 
for  transient  purposes;  and  that  mere  temporary  absences  from  the  Slate,  with- 
out any  intention  to  remain  permanently,  upon  business  or  for  other  purposes, 
could  not  be  deducted  from  the  statutory  period  to  extend  it  beyond  the  six 
years. 

2  Engel  v.  Fischer,  102  N.  Y.  400;  Rhoton  v.  Mendenhall,  17  Or.  199.  In 
some  cases  it  is  held  that  the  return  must  be  open  and  notorious,  and  under 
such  circumstances  that  the  creditor  could  with  reasonable  diligence  find  his 
debtor  and  serve  him  with  process.  Little  v.  Blunt,  16  Pick.  359;  Hill  v. 
Bellows,  15  Vt.  727;  Hysinger  v.  Baltzell,  3  Gill  &  J.  15S;  Didier  v.  Davison,  2 
Barb.  Ch.  477;  Ford  v.  Babcock,  2  Sandf.  518;  Cole  v.  lessup,  10  N.  Y.  96; 
Dorr  v.  Swartwout,  1  Blatchf.  179;  3  Pars.  Cont.  (6th  ed.)  96;  Ang.  Lim.  (2d 
ed.)  216.  See  Sleght  v.  Kane,  1  Johns.  Cas.  76;  Poillon  v.  Lawrence,  77  N.  Y. 
207.  In  Rhoton  v.  Mendenhall,  17  Or.  199,  it  was  held  that  under  the  statute, 
the  word  "  conceal,"  as  used  therein,  means  some  affirmative  act  done  in  the 
State,  such  as  passing  under  an  assumed  name,  change  of  occupation,  or  some 
other  act  which  will  prevent  the  community  in  which  he  lives  from  knowing 
who  he  is  or  where  he  came  from.  In  several  of  the  States,  as  Virginia,  West 
Virginia,  and  Nebraska,  the  statute  provides,  as  it  does  in  Oregon,  that  if  a 
person  shall  be  absent  from  the  State,  or  conceal  himself,  etc.,  the  statute  shall 
not  run.  Indeed,  in  most  of  the  States,  the  statutes  differ  in  their  provisions 
under  this  head,  and  should  be  examined  to  ascertain  the  application  of  a 
decision  thereunder. 

(a)  A  foreign  ambassador  at  London  favor  against   his   creditors.      Magda- 

or  Washington  is  so  far  "  absent  "  and  lena  Steam   Nav.   Co.   v.   Martin,  2  E. 

a  non-resident,  that,  as    he   cannot  be  &    E.    94;    Musurus    Bey    v.    Gadban, 

sued  while  holding  such  office,  the  stat-  [1894]  2  Q.  B.  352,  356. 
ute  of   limitations   does  not    run  in  his 


550  STATUTES    OF    LIMITATION.  [CHAP.    XIX. 

can  be  said  to  exist.  It  is  mainly  a  question  of  fact  to  be  deter- 
mined by  the  jury.1  In  the  United  States  Supreme  Court,2 
where  a  traveling  saleman  residing  in  St.  Louis  (Mo.),  who  sent 
his  wife  and  children  to  Brooklyn  (N.  Y.),  where  they  took  up 
their  residence  and  commenced  to  keep  house  and  have  since 
resided,  was  held  not  to  become  a  resident  of  New  York  when 
he  sent  his  family  into  that  State,  nor  until  he  joined  them  there, 
it  was  held,  that  by  retaining  his  residence  for  purposes  of  busi- 
ness in  St.  Louis,  he  did  not  become  a  resident  of  New  York, 
within  the  meaning  of  its  statutes  of  limitation,  until  he  changed 
his  actual  residence  to  that  State,  although  his  domicil  might 
be  there.  In  these  statutes  the  woi  d  "  residence  ' '  is  not  synony- 
mous with  "domicil."3 

Sec.  246.  Joint  Debtors,  Absence  of  one,  efiect  of.  —  Where 
there  are  two  or  more  joint  debtors,  one  of  whom  is  absent,  the 
statute  does  not  run  in  favor  of  the  absent  debtor,  although  it 
has  run  in  favor  of  the  other;4  nor,  upon  the  other  hand,  does 
the  circumstance  that  one  of  the  joint  debtors  is  absent  from  the 
State  prevent  the  statute  from  running  in  favor  of  the  others. 

Sec.  247.  Residence  need  not  be  continuous.  —  In  order  to 
avail  himself  of  the  benefit  of  the  statute  of  limitations,  the  party 
must  have  resided  in  the  State,  either  actually  or  constructively, 
for  the  full  statutory  period.  But  the  residence  need  not  be 
continuous.  If  its  actual,  different  periods  may  be  tacked 
together  to  make  out  the  full  period;5  and  if  he  actually  dwells 
in  the  State  for  the  requisite  period,  the  circumstance  that  his 
wife  and   family  have  resided  in  another  State  will  not  deprive 

1  See  Frost  v.  Brisbin,  19  Wend.  (N.  Y.)  11. 
'  Penfield  v.  Chesapeake  R.  R.  Co.,  134  U.  S.  351. 

3  In  re  Thompson,   r   Wend.  (N.  Y.)  45;  Bell  v.   Pierce,   54  N.  Y.  12;   Union 

Hotel   Co.   z.    Hersee,  79   N.  Y.   454;  Tazewell   Co.   v.   Davenport,   40   111.  197; 

Strang  v.  Smith,  43  Miss.  499;   Reg.  v.  University  of  Oxford,  L.  R.  7  Q.  B,  471; 

Blackwell   v.  England,  8  El.  &   El.  549;   Hewer   r.  Cox,  3    El.  &  El.  428;  Atty.- 

,.  v.  McLean,  1   II.  &  C.  750. 

?>.  Vermilya,    17   N.  Y.   447;  Cutler  v.  Wright,  22  id.  472;   Denny  v. 

Smith,    [8    id.  567;    Brown    v.    Delafield,    1    Den.  (X.  V.)  445.     Thus   in    Bell   v. 

Lamprey,  57  N,  II.  [68,  it  was  held  as  to  a  claim  upon  which  the  statute  ran  in 

years,  thai  the  defendant,  in  order  to  avail  himself  of  the  statute,  must  show 

that  he   In-   re  idi  d   in  tin-  Si  a    six  full  years,  of  three  hundred  and  sixty-five 

n  1  ooimon  ye  irs,  and  three  hundred  and  sixty-six  days  in  leap  years. 

'Crocker  v.  Clements,  23  Ala    296. 


§247-]  DISABILITIES    IN    PERSONAL  ACTIONS.  551 

him  of  the  benefit  of  the  statute.1  But  the  fact  that  a  person 
does  business  in  one  State,  but  resides  with  his  family  in  another, 
although  he  spends  most  of  his  time  in  the  State  where  he  does 
business,  will  not  entitle  him  to  the  benefit  of  the  statute  of  such 
State.2 

Under  the  second  clause  of  those  statutes,  which  provide  that 
where  a  debtor  after  a  cause  of  action  accrues  against  him,  "  shall 
be  absent  from  and  reside  out  of  the  State,"  the  time  of  such 
absence  shall  not  be  taken  as  a  part  of  the  time  limited.  Neither 
absence  from  the  State,  nor  residence  out  of  it,  alone,  will  sus- 
pend the  statute.  Both  must  concur.3  And  it  has  been  held 
that,  under  this  clause,  where  the  absence  from  the  State  has  not 
bjeu  continuous,  the  different  occasions  when  the  debtor  has 
been  within  the  State  may  bs  taken  together,  and  during  the 
periods  so  computed  the  statute  will  run,  provided  the  plaintiff 
by  due  diligence  might  have  obtained  service  of  process  upon  the 
defendant.4  Except  where  the  statute  expressly  so  provides, 
the  fact  that  the  defendant  had  property  subject  to  attachment 
in  the  State  will  not  prevent  the  suspension  of  the  statute  during 
the  period  he  is  actually  absent  therefrom,  as  the  statute  follows  the 
person  and  not  the  property.5  Under  those  statutes  in  which 
provision  is  made  that  if  a  person  obsrtucts  the  service  of  process 
upon   him,  or  the  prosecution  of  an  action  pending,  the  "time 

1  Seymour  v.  Street,  5  Neb.  85. 

'Bennett  v.  Cook,  43  N.  Y.  537.  This  rule  was  also  held  in  Bassett  v.  Bas- 
sett,  55  Barb.  (N.  Y.)  505,  where  the  defendant,  after  the  note  was  given, 
removed  to  another  State,  but  continued  to  do  business  in  New  York,  and  came 
daily  to  his  office  there.  Occasionally  coming  into  the  State  is  held  not  to  put 
the  statute  in  motion  where  a  person,  after  the  cause  of  action  accrues,  is 
absent  from  and  resides  out  of  the  State.  Hacker  v.  Everett,  57  Me.  548.  In 
Lane  v.  National  Bank  of  the  Metropolis,  6  Kan.  74,  where  a  citizen  of  Kansas 
was  personally  absent  from  the  State  in  which  his  residence  was,  it  was  held 
that  the  statute  did  not  run  in  his  favor,  although  he  kept  a  furnished  house  in 
his  usual  place  of  residence,  which  was  occupied  by  his  family.  See  also  Con- 
rad v.  Nail,  24  Mich.  275,  where  it  was  held  erroneous  to  charge  that  the 
defendant's  stay  in  another  Stale,  while  his  family  resided  in  the  State  of  the 
forum,  was  not  a  residence  in  such  other  State,  as  the  residence  of  the  defend- 
ant's family  does  nol  of  itself,  as  a  matter  of  law,  determine  the  place  of  the 
husband's  residence. 

*  In  Campbell  v.  White,  22  Mich.  178,  it  was  held  that  the  residence  out  of  the 
State  contemplated  by  the  legislature  must  be  something  more  than  having  a 
mere  place  of  abode  out  of  the  State. 

4  Campbell  v.  White,  supra. 

6  Fisher  v.  Fisher,  43  Miss.  212. 


552  STATUTES   OF    LIMITATION.  [CHAP.   XIX. 

during  which  he  so  obstructs  such  service  or  the  prosecution  of 
such  action  shall  not  be  computed,"  it  is  held  that  absence  from 
the  State  amounts  to  such  obstruction.1 

1  Poston  v.  Smith,  8  Bush  (Ky.)  5S9.  See  Barney  v.  Oelrichs,  138  U.  S.  529, 
slated  supra,  §  245,  where  the  court  said:  "  In  Penfield  v.  Chesapeake,  O.  &  S. 
W.  R  Co.,  134  U.  S.  351,  we  had  occasion  to  consider  when  a  person  might  be 
properly  held  to  be  a  resident  of  the  State  of  New  York  and  entitled  to  bring  an 
action  which  would  have  otherwise  been  barred  by  the  laws  of  the  defendant's 
residence,  and  this  involved  an  examination  of  the  decisions  in  thai  State  in  the 
construction  of  I  he  words  '  resident '  and  '  residence,'  as  contained  in  its  statutes." 
Citing  ^Thompson,  1  Wend.  43;  Frost  v.  Brisbin,  19  Wend,  n ;  Haggart  v. 
Morgan,  5  N.  Y.  422,  and  Meiikamp  v.  Loehr,  21  Jones  &  S.  79;  Burroughs  v. 
Bloomer,  5  Denio,  532;  Ford  v.  Babcock,  2  Sandf.  518;  Cole  v.  Jessup,  10  N.  Y. 
96;  Satterthwaite  v.  Abercrombie,  23  Blatchf.  308,  and  Engel  v.  Fischer,  102 
N.  Y.  400.  See  In  re  Wrigley,  4  Wend.  602,  8  Wend.  134.  In  Frost  v.  Brisbin, 
19  Wend,  ir,  it  is  said  that  the  word  "  inhabilant  "  implied  a  more  permanent 
and  fixed  abode  than  the  word  "  resident  "  and  "  frequently  imports  many 
privileges  and  duties  which  a  mere  resident  cannot  claim  or  be  subject  to;  " 
and  that  "  the  transient  visit  of  a  person  for  a  time  at  a  place  does  not  make 
him  a  resident  while  there  —  that  something  more  is  necessary  to  entitle  him  to 
that  character."  See  Bartlett  v.  New  York,  5  Sandf.  44;  Douglas  v.  New  York, 
2  Duer,  no;  Bell  v.  Pierce,  51  N.  Y.  J2.  As  to  the  statute  of  limitations  there 
were  two  exceptions  to  its  operation:  (1)  Where  the  debtor  was  absent  from 
the  State  when  the  cause  of  action  accrued;  (2)  where  the  debtor,  after  the  cause 
of  action  had  accrued,  departed  from  and  resided  out  of  the  State.  Under  the 
first  exception  absence  was  sufficient  to  avert  the  bar,  because  the  statute  did 
not  commence  to  run  until  the  return  of  the  debtor  into  the  State,  and  such 
return,  it  was  decided,  must  be  open  and  notorious,  so  that  a  creditor  might 
with  reasonable  diligence  rind  his  debtor  and  serve  him  with  process.  Engel 
v.  Fischer,  102  N.  Y.  400.  But  to  bring  a  case  within  the  second  exception 
something  more  than  absence  was  essential  to  be  shown.  In  Wheeler  v. 
Webster,  1  E.'D.  Smith,  1,  Judge  Ingraham  said  that  "  it  was  necessary  to 
prove  that  the  debtor  departed  from  the  State,  and  also  that  he  resided  out  of 
the  State,  The  evidence  did  not  tend  to  show  this.  For  aught  that  is  in  proof 
before  us,  the  absence  may  have  been  merely  temporary;  excursions  for 
pleasure  or  business,  with  a  return  to  this  State  as  the  residence  of  the  debtor. 
Mere  presence  was  not  tantamount  to  residence  under  the  statute,  nor  mere 
absence  equivalent  to  residence  elsewhere.  And  the  occasional  absences  of  a 
lent  of  the  State  continuing  to  reside  therein  were  not  to  be  deducted  in 
computing  the  statutory  term.  Ford  v.  Babcock,  2  Sandf.  518,  520  Apparently, 
because  this  was  obviously  so,  the  legislature  of  New  York,  by  an  act  passed 
April  -•?;,  [867  (Laws  N.  Y.  1867,  p.  1921),  amended  section  100  by  adding  after 
tin-  ur,rils  "  and  reside  out  of  this  State,"  the  following,  "  or  remain  continu- 
ously absent  therefrom  for  the  space  of  one  year  or  more."  Absence  for  the 
time  specified  was  thus  provided  to  be  educted  from  the  time  limited  for  the 
commencement  of  actions,  so  that,  whether  the  defendant  resided  out  of 
the  Stale  <>r  not,  such  absence  would  suspend  the  running  of  the  statute.  We 
bol  1  thai  ihe  resident  e  out  of  the  State  which  operated  to  suspend  the  running 


§§248-250.]    DISABILITIES    IN    PERSONAL   ACTIONS.  553 

SEC.  248.  Absconding  Debtors.  —  In  those  States  where  the 
statute  is  only  saved  when  the  debtor  absconds  from  the  State, 
in  order  to  avail  himself  of  the  saving  of  the  statute,  it  is  incum- 
bent upon  the  plaintiff  to  show  that  the  defendant  actually 
absconded  from  the  State,  that  is,  left  it  secretly;  and  if  he  left 
openly  the  statute  is  not  saved,  although  the  debtor  does  not 
return  to  the  State  again. 

Sec.  249.  Concealment.  —  The  concealment  of  a  debtor,  which 
saves  the  statute  in  those  States  where  a  provision  of  that  kind 
exists,  need  not  be  fraudulent,  but  a  change  of  residence  several 
times  by  the  debtor,  without  informing  his  creditor,  has  been 
held  sufficient.1 

Sec.  250.  Foreign  Corporations.  —  Foreign  corporations,  al- 
though having  general  agents  and  transacting  business  in  a  State, 
come  within  the  provisions  of  those  statutes  which  make  a  saving 
as  to  absent  debtors;2  for  although  by  comity,  they  may  transact 
business  in  another  State,  yet  they  are  "citizens,"  so  to  speak, 
of  the  State  under  the  laws  of  which  they  are  created,  and,  except 
by  comity,  have  no  legal  existence  elsewhere,  and  consequently 
are  "absent,"  within  the  meaning  of  the  term  as  used  in  these 
statutes,  from  every  State  except  the  one  in  which  they  have 
their   situs. (a)     The  rule  above  stated,  however,  would  have  no 

of  the  statute  under  section  100  as  originaily  framed  was  a  fixed  abode  entered 
upon  with  the  intention  to  remain  permanently,  at  least  for  a  time,  for  business 
or  other  purposes,  and  as  there  was  no  evidence  lending  to  establish  such  a 
stale  of  fact  here,  the  judgment  must  be  reversed.  The  same  conclusion  has 
been  reached  in  effect  by  many  cf  the  State  courts,  and  reference  to  decisions 
in  Massachusetts,  Maine,  Vermont,  and  New  Hampshire,  will  be  found  in  the 
well-considered  opinion  of  the  Supreme  Court  of  Illinois  in  Pells  v.  Snell,  130 
111.  379,  where  the  terms  of  the  statute  were  nearly  identical  with  those  of  that 
of  New  York,  and  the  court  approved  the  definition  of  "  residence  "  as  given  in 
Re  Wrigley,  8  Wend.  134;  Frost  v.  Brisbin,  19  Wend.  11 ;  and  Boardman  v. 
House,  18  Wend.  512. 

1  Harper  v.  Pope,  9  Mo.  402. 

2  Robinson  v.  Imperial,  etc..  Mining  Co.,  5  Nev.  44;  Rathbun  v.  Northern 
Central  R.  Co.,  50  N.  Y.  656;  Olcott  v.  Tioga  R.  Co..  20  id.  210;  Thompson  v. 
Tioga  R.  Co.,  36  Barb.  (N.  Y.)  79;  Mallory  v.  Tioga  R.  R.  Co.,  3  Keyes  (N.  Y.) 
354.     In   New  York,  in  Faulkner  v.   Delaware,  etc.,  Canal  Co..  1   Den.  (N.  Y.) 

(a)  See  Turcott  v.  Railroad  (101  Tenn.  18  L.  R.  A.  524,  and  n. ;   3S  Cent.  L.  J. 

102),  70  Am.   St.    Rep.  661,  and  n.     As  275.     See   also   as   to   foreign   corpora- 

to  the  right  of  a  foreign  corporation  to  tions,    Larson    v.    Aultman    &    Tavlor 

plead    the   statute   of    limitations,    see  Co..  S6  Wis.  281;  Clarke  v.  Mississippi 

Winney  v.   Sandwich   Mfg.  Co.  (Iowa),  Bank,  52  Am.  Dec.  24.8,  and  n. 


554  STATUTES    OF    LIMITATION.  [CHAP.   XIX. 

application  in  Vermont,  when  the  corporation  had  attachable 
property  in  the  State;  because  the  statute  of  that  State  does  not 
save  a  debt  from  the  operation  of  the  statute  where  the  debtor 
has  known  property  in  the  State,  which,  by  the  ordinary  process 
of  law,  might  be  attached.1 

SEC.  251.  Cumulative  Disabilities.  —  Except  where  the  statute 
otherwise  so  provides,  one  disability  cannot  be  tacked  to  another, 
nor  the  disabilities  of  an  ancestor  to  those  of  the  heir,  to  protect 
a  party  from  the  operation  of  the  statute;2  nor  can  a  party  avail 
himself  of  several  disabilities,  unless  they  all  existed  at  the  time 
when   the   right   of   action   accrued.3     Thus,  if  a  right  of  action 

441,  a  contrary  doctrine  was  held,  but  was  overruled.  Olcott  v.  Tioga  R.  Co., 
supra.     And  the  doctrine  of  the  latter  case  now  prevails  in  that  State. 

1  Hull  v.  Vermont,  etc..  R.  R.  Co.,  28  Vt.  401. 

'  Clark  v.  Jones,  16  B.  Mon.  (Ky.)  121;  Parsons  v.  M'Cracken,  9  Leigh  (Va.) 
495;  Martin  v.  Letty,  18  B.  Mod.  (Ky.)  573;  Clark  v.  Jones,  16  id.  121;  Boyce 
v.  Dudley,  8  id.  511;  Jackson  v.  Wheat,  18  Johns.  (N.  Y.)  40;  M'Donald  v. 
Johns,  4  Yerg.  (Tenn.)  258.  Cumulative  disabilities  are  of  no  avail  against  the 
statute  of  limitations.  Fritz  v.  Joiner,  54  111.  101;  Mercer  v.  Selden,  1  How. 
(U.  S.)  37;  Thorp  v.  Raymond,  16  id.  247;  Ashbrook  v.  Quarles,  15  B.  Mon. 
(Ky.)  20;  White  v.  Latimer,  12  Tex.  61;  Currier  v.  Gale,  3  Allen  (Mass.)  328; 
Dessaunier  v.  Murphy,  33  Mo.  184,  where,  at  the  time  ihe  right  of  action 
ace  ued,  the  plaintiff  was  insane,  but  subsequently  recovered;  and  before  the 
statute  had  run  upon  the  claim  he  again  became  insane,  it  was  soughl  to  avoid 
the  effect  of  the  statute  under  this  second  disability;  but  the  court  held  that, 
as  the  statute  began  to  run  from  the  time  of  his  recovery  from  his  lunacy,  it 
was  not  arrested  by  a  return  of  the  disability.  Clark  v.  Trail,  1  Met.  (Ky.)  35. 
The  disability  of  minor  children  cannot  be  added  to  the  disability  of  the  mother, 
under  whom  they  claim.  Mitchell  v.  Berry,  1  Met.  (Ky.)  602,  Mercer  v. 
Selden,  4  How.  (U.  S.)  37;  Starke  v.  Starke,  3  Rich.  (S.  C.)  438;  Thorp  v.  Ray- 
mond.  16  How.  (U.  S."}  247;  Dease  v.  Jones,  23  Miss.  133;  Caldwell  v.  Thorp,  8 
Ala.  25;  Tyson  v.  Britton,  6  Tex.  222;  Stevens  v.  Bomar,  9  Humph.  (Tenn.)  546. 

8  Mince   v.   Wolcott,   2   Conn.  27.     In   Bradstreet  v.  Clarke,  12  Wend.  (N.  Y.) 

602,  il   is  held  that  cumulative  disabilities  cannot  be  allowed  either  is  real  or 

pr^onal    actions.       Rankin    v.    Tenbrook,    6    Watts    (Penn.)    388;     Kendal    v. 

'iter,  1  A.  K.  Mar.  (Ky.)  375.     A  few  cases  have  here  applied  this  rule  in 

personal  actions,  Butler  v.  Howe,  13  Me.  397;  and  there  can  be  no  question  but 

ihat  in  this  country  this  rule  is  applicable  in  either  real  or  personal  actions.     In 

I  tri'1  there  is  no  actual  decision  upon  this  question;   but  in  Borrows  v.  Elli- 

son,  L.  R.  6  ]  [28,  there  are  dicta  which  intimate  a  contrary  rule  from  that 

held  in  this  country;  but  such  a  doctrine  hardly  seems  warranted  by  a  fair  con- 

i,,n  r,f  the  English  statutes,  and  it  is  extremely  doubtful  whether,  if  a  case 

involving  the  question  should  arise,  it  would  be  applied.     In  Bunce  v.  Wolcott, 

'  inn.  32,  wher  ■  an  application  was  made  to  redeem  a  mortgage  by  the  heirs 
of  a  mortgagor,  more  than  fifty  years  after  his  death,  because  of  certain  irregu- 
larities,  and  il  was  soughl  to  avoid  the  effect  of  the  statute  of  limitations  as  to 


^  25 1 .]  DISABILITIES    IN    PERSONAL    ACTIONS.  555 

accrues  to  a  female  infant,  and  she  afterwards  marries,  the  cover- 
ture does  not  create  an  additional  disability  ;  but,  notwithstanding 
the  coverture,  an  action  must  be  brought  within  the  specified 
period  after  she  becomes  of  age,  or  the  claim  will  be  barred,1  as 
no  supervenient  disability  can  have  the  effect  to  suspend  the 
operation   of   the   statute.2     It  will   be  observed  that  the  saving 

the  heirs  by  tacking  the  disability  of  infancy  and  coverture  together.  But  the 
court  held  that  this  could  not  be  done,  although  it  was  permitted  in  a:i  early 
case  in  that  State.     Eaton  v.  Sanford,  2  Day  (Conn.)  523. 

1  Clark  v.  Jones,  supra;  Fewell  v.  Collins,  Const.  Rep.  (S.  C.)  202;  Wellborn 
v.  Weaver,  17  Ga.  267;  Mitchell  v.  Berry,  1  Met.  (Ky.)  602.  The  disability  of 
coverture  cannot  be  united  with  that  of  infancy  to  avoid  the  effect  of  the 
statute.  Parsons  v.  M'Cracken,  9  Leigh  (Va.)  495;  Martin  v.  Letty,  18  B.  Mon. 
(Ky-)  573;  Manion  v.  Titsworth,  id.  582;  Billon  v.  Larimore,  37  Mo.  375;  Car- 
lisle v.  Stitler,  1  Penn.  6;  Dugan  v.  Gittings,  3  Gill  (Md.)  138.  In  Findley  v. 
Patterson,  2  B.  Mon.  (Ky.)  76,  it  was  held  that  an  action  for  slaves  held 
adversely  to  the  wife  on  her  marriage  in  infancy,  must  be  brought  within  the 
statutory  period  after  she  became  of  age,  and  that  the  fact  that  the  wife  died 
before  that  time  did  not  change  the  rule,  and  that  the  disability  of  infancy 
could  not  be  lapped  on  to  that  of  coverture  so  as  to  prolong  the  slatutory  saving 
against  the  legal  effect  of  the  lapse  of  time.  Riggs  v.  Doolev,  7  B.  Mon.  (Ky.) 
236.  In  Texas,  a  female  infant  upon  her  marriage  immediately  becomes  of 
age,  and  the  statute  then  begins  to  run  against  a  previously  existing  claim. 
Thompson  v.  Cragg,  24  Tex.  5S2;  White  v.  Latimer,  12  id.  fir.  But  the  rule  is 
generally  otherwise,  and  the  statute  does  not  begin  to  run  until  she  becomes  of 
age.  Wilson  v.  Kilcannon,  4  Ilayw.  (Tenn.)  182.  But  in  North  Carolina  it  is 
held  otherwise.  Davis  v.  Cooke,  3  Hawks  (N.  C.)  608.  But  see  Duckett  v. 
Crider,  ri  B.  Mon.  (Ky.)  188,  where  it  was  held  that  a  woman  under  age  was 
enlitled  to  her  action  to  recover  possession  of  a  slave.  She  married  before  she 
came  of  age,  and  it  was  held  that  the  two  disabilities  of  nonage  and  coverture 
could  be  joined  for  the  purposes  of  deferring  the  bar  of  the  statute  of  limita- 
tions. See  Boyce  v.  Dudley,  8  id.  511,  where  a  contrary  rule  was  adopted;  and 
Martin  v.  Letty,  18  id.  573;  Clark  v.  Jones,  16  id.  121;  and  see  Wellborn  v. 
Finley,  7  Jones  (N.  C.)  L.  228,  where  it  was  held  that  the  disability  of  nonage 
and  coverture  could  not  be  joined  to  prevent  the  operation  of  the  statute.  In 
Keil  v.  Healey,  84  111.  104.  it  was  held  that  the  statute  is  not  arrested  by  cumu- 
lative disabilities,  as  where  a  female  is  not  married  until  five  months  after  age, 
her  coverture  does  not  create  a  disability  as  to  matters  accruing  before  coverture; 
and  the  same  doctrine  was  adopted  in  Cozzens  v.  Farnan,  30  Ohio  St.  491, 
adopting  the  invariable  rule  that  the  disability  which  arrests  the  running  of  the 
statute  must  exist  at'  the  time  when  the  right  of  action  accrued.  Hinde  v. 
Whitney,  31  id.  53;  Hogan  v.  Kurtz,  94  U.  S.  773;  Bozeman  v.  Browning,  31 
Ark.  364;  Den  v.  Moore,  3  Wall.  Jr.  (U.  S.  C.  C.)  292;  Hull  v.  Deatly,  7  Bush 
(Ky.)  687;  Fritz  v.  Joiner,  54  111.  101;  Harris  v.  McGovern,  2  Sawyer  (U.  S.)  515; 
Rogers  v.  Brown,  61   Mo.  187;  Swearingen  v.  Robertson,  39  Wis.  462. 

*  Bunce  v.  Wolcott,  2  Conn.  32.  A  party  cannot  avail  himself  of  any  disability 
to  bring  himself  within  the  saving  of  the  statute,  except  such  as  existed  at  the 
time  when  the  cause  of  action  accrued.      McCoy  v.   Nichols,  5   Miss.  3r.     And 


556  STATUTES   OF    LIMITATION.  [CHAP.   XIX. 

clause  in  the  statute  of  James,  as  well  in  all  our  statutes,  is. 
limited  expressly  to  such  disabilities  as  existed  at  the  time  the 
right  of  action  accrued;  consequently,  if,  at  the  time  when  a 
right  of  action  accrues,  a  man  is  of  full  age,  the  fact  that  he 
shortly  afterwards  became  insane  will  not  save  his  claim  from  the 
operation    of   the   statute.1     Nor  if   a   right   of   action  accrues  in 

no  after  accruing  disability  can  stop  the  statute  after  it  has  once  commenced  to 
run.  Parsons  v.  M'Cracken,  g  Leigh  (Va.)  495;  Fitzhugh  v.  Anderson,  2  H.  &  M. 
(Va.)  289;  Hudson  v.  H  udson,  6  Munf.  (Va.)  352;  M'Donald  v.  Johns,  4  Yerg. 
(Tenn.)  35S.  In  Demarest  v.  Wynkoop,  3  Johns.  (N.  Y.)  Ch.  129,  the  court  held 
that  a  disability  to  relieve  a  party  from  the  operation  of  the  statute  imiting  real 
actions  must  exist  when  the  right  first  accrues,  and  that  although  before  the 
termination  of  the  first  disability  another  commences,  the  statute  begins  to  run 
from  the  termination  of  the  first.  In  Lewis  v.  Marshall,  5  Pet.  (U.  S.)  469,  it 
was  held,  under  a  former  statute  of  limitations  of  Kentucky,  limiting  the  right 
of  action  against  one  in  the  adverse  possession  of  land  to  twenty  years,  provided 
that  persons  under  disability  may,  although  said  twenty  years  are  expired, 
maintain  his  action,  or  make  his  entry,  within  ten  years  next  after  such  disa- 
bilities removed,  or  the  death  of  the  person  so  disabled,  that  if  an  adverse  pos- 
session of  land  commenced  during  the  disability  of  a  claimant,  who  died  during 
such  disability,  the  ten  years  began  to  run  against  his  heirs  from  the  time  of 
his  death;  but  if  the  right  of  such  claimant  descended  to  his  heiis  before  the 
commencement  of  the  adverse  possession,  the  statute  did  not  operate  against 
them  until  their  disability  was  removed.  In  Texas,  by  statute,  a  female  infant, 
upon  her  marriage,  becomes  of  full  age  although  in  fact  a  minor;  and  this  is 
held  to  deprive  her  of  both  the  disabilities  of  infancy  and  coverture  as  to  all 
rights  of  action  which  accrued  before  her  marriage.  Thompson  v.  Cragg,  i\ 
Tex.  5S2.  The  provisions  in  the  statute  exempting  certain  persons  subject  to 
specified  disabilities  until  ten  years  after  their  removal,  only  applies  where 
some  one  of  such  disabilities  exists  in  the  person  entitled  to  the  estate  at  the 
commencement  of  the  adverse  possession;  and  if  there  be  a  succession  cf  such 
disabilities,  whether  in  the  person  then  entitled,  or  in  him  or  those  who  succeed 
to  his  title,  such  person  or  persons  are  protected  by  the  proviso  only  for  ten 
years  after  the  removal  of  the  first  disability.  Clarke  v.  Cross,  2  R.  I.  440. 
Disabilities  which  may  bring  a  person  within  the  exceptions  cannot  be  piled  one 
upon  another,  but  only  the  disability  in  existence  at  the  time  the  cause  of  action 
accrued  applies.  When  there  are  two  or  more  coexisting  disabilities  in  (he 
same  person  at  the  time  the  cause  of  action  accrues,  as,  for  instance,  infancy 
and  covertuie,  the  statute  does  not  run  till  both  or  all  are  removed.  But  if  at 
the  lim  •  the  cause  of  action  accrues  only  one  disability  exists,  others  which 
arise  afterwards  cannot  be  tacked  to  the  first  disability  so  as  to  prevent  the 
ition  of  the  statute.  Scott  v.  Haddock,  n  Ga.  258;  Young  v.  Mackall,  4 
Md.  362. 

In  Adamson  v.  Smith,  2  Rep.  Con.  Ct.  (S.  C.)  269,  where  a  person  who  was 
mi  !•  r  no  disability  at  the  time  when  a  note  given  to  him  became  due  shortly 
afterw  mis  became  non  <"  mentis,  the  court  held  that  this  supervenient  dis- 
ability did  not  check  the  operation  of  the  statute. 


§251.]  DISABILITIES    IN    PERSONAL    ACTIONS.  557 

favor  of  a  female  of  full  age,  and  she  soon  afterwards  marries, 
will  the  disability  of  coverture  save  her  rights  from  being  barred 
by  the  lapse  of  the  statutory  period.1  This  is  in  obedience  to 
the  universal  rule,  before  stated,  that  when  the  statute  once 
begins  to  run  no  subsequent  disability  can  stop  its  operation,2 
unless  specially  so  provided  in  the  statute.  It  may  be  stated  as 
a  general  rule,  to  which  there  are  no  exceptions,  that,  except 
when  the  statute  otherwise  provides,  disabilities  which  bring  a 
person  within  the  exceptions  of  the  statute  cannot  be  tacked  one 
upon  another,  and  that  a  party  can  only  avail  himself  of  such 
disability  or  disabilities  as  existed  when  the  right  of  action 
accrued.3  If  a  right  of  action  accrues  to  a  married  woman  during 
coverture,  and  she  becomes  discovert,  and  before  the  statute  has 
run  upon  her  claim  marries  again,  her  second  marriage  does  not 
prevent  the  statute  from   running  upon  the  claim,  because  the 

'Carlisle  v.  Stiller,  i  Penn.  6. 

2Crozier  v.  Gano,  I  Bibb  (Ky.)  257;  Faysoux  v.  Prather,  1  N.  &  M.  (S.  C.) 
296;  Rogers  v.  Hillhouse,  3  Conn.  398;  Peck  v.  Randall,  1  Johns.  (N.  Y.)  165; 
Ruff  v.  Bull,  7  H.  &  J.  14;  Dillard  v.  Philson,  5  Strobh.  (S.  C.)  213;  Sevenson 
v.  McReary,  20  Miss.  9;  Byrd  v.  Byrd,  28  id.  144;  Pendergrast  v.  Foley,  8  Ga. 
I;  Smith  v.  Newby,  13  Mo.  159;  Parsons  v.  M'Cracken,  9  Leigh  (Va.)  495;  Hud- 
son v.  Hudson,  6  Munf.  (Va.)  352. 

3  MrFarland  v.  Stone,  17  Vt.  165;  Mercer  v.  Selden,  1  How.  (U.  S.)  37;  White 
v.  Latimer,  12  Tex.  61;  South  v.  Thomas,  7  T.  B.  Mon.  (Ky.)  59;  M'Donald  v. 
Johns,  4  Yerg.  (Tenn.)  258;  Thorp  v.  Raymond,  16  How.  (U.  S.)  247:  Starke 
v.  Starke,  3  Rich.  (S.  C.)  438;  Rankin  v.  Tenbrook,  6  Walts  (Penn.)  388;  Doe  v. 
Barksdale,  2  Brock.  (U.  S.  C.  C  )  436;  Scott  v.  Haddock,  11  Ga.  258;  Demarest 
v.  Wynkoop,  3  Johns.  (N.  Y.)  Ch.  I2q;  Dease  v.  Jones,  23  Miss.  133;  Den  v. 
Richards,  15  N.  J.  L.  347;  Bradstreet  v.  Clarke,  12  Wend.  (N.  Y.)  602;  Jackson 
v.  Wheat,  18  Johns.  (N.  Y.)  40.  This  rule,  says  Hosmer  J.,  in  Bunce  v.  Wolcott, 
2  Conn.  34,  "  avoids  the  inconvenience  of  accumulated  successive  disabilities, 
which,  for  an  interminable  period,  might  subvert  titles  apparently  well  estab- 
lished, and  produce  ihe  most  ruinous  instability."  3  Bac.  Abr.  206;  Stowel  v. 
Zouch,  Plowd.  356;  Duroure  v.  Jones,  4  T.  R.  300;  George  v.  Jesson,  6  East,  80; 
Eager  v.  Commonwealth,  4  Mass.  182.  In  Minnesota,  Oregon,  New  York,  and 
California,  it  is  specially  provided  that  no  person  shall  avail  himself  of  a  disa- 
bility unless  it  existed  when  the  action  accrued,  and  lhat  if  two  or  more  disa- 
bilities existed  when  the  cause  of  action  arose,  the  statute  shall  not  begin  to  run 
until  all  are  removed.  In  all  the  States  except  Texas,  Mississippi,  and  Indiana, 
the  disability  is  expressly  restricted  to  the  time  when  the  cause  of  action 
accrues;  but  in  those  States  the  words,  "  when  the  right  of  action  accrues." 
or  "  when  the  cause  of  nction  arises,"  aie  not  used  in  the  statute,  and  in  those 
States  cumulative  disabilities  may  doubtless  be  tacked.  In  Texas  it  is  held 
that  the  statute  relates  to  such  disabilities  only  as  existed  when  the  right  of 
action  arose.      White  v.  Latimer,  12  Tex.  61. 


558  STATUTES    OF    LIMITATION.  [CHAP.    XIX 

statute,  having  once  attached  to  the  claim,  overrides  all  after- 
accruing  disabilities.1  When  several  disabilities  exist  at  the  time 
when  a  right  of  action  accrues,  as,  if  a  woman  should  be  both  an 
infant  and  a  feme  covert,  or  a  feme  covert  and  insane,  she  may 
elect  to  avail  herself  of  either  of  the  disabilities,  and,  if  no  elec- 
tion is  made,  the  court  would  give  her  the  advantage  of  the  one 
most  available  to  defeat  the  statute;  and  in  the  language  of 
Edmund,  J.,2  "  It  will  always  be  a  sufficient  answer  to  an  objector 
to  such  an  election  to  say,  '  the  disability  on  which  I  rely  is 
pointed  out  by  the  proviso.  It  existed  at  the  time  my  right  or 
title  accrued.  I  have  prosecuted  my  claim  within  the  time 
allowed  after  its  discontinuance,  and  come  within  both  the  letter 
and  spirit  of  the  law.'  "3  The  disabilities  are  not  merged,  but 
each  remains  distinctively  until  it  is  extinguished  by  lapse  of 
time;4  and,  as  we  have  already  stated,  either  may  be  set  up  to 
defeat  the  statute  as  the  party  may  elect. 

SEC.  252.  Disability  must  be  one  provided  for  by  Statute.— 
The  statute  of  limitations  begins  to  run  against  a  party  immedi- 
ately upon  the  accrual  of  a  right  of  action,  unless  at  that  time  he 
was  under  some  of  the  disabilities  named  in  the  statute;  and  a 
saving  or  exception  not  found  in  the  statute  will  not  be  implied, 
however  much  it  may  be  within  the  reason  of  other  exceptions.5 

1  Downing  v.  Ford.  9  Dana  (Ky.)  391;  McDonald  v.  McGuire,  8  Tex.  361;  Den 
v.  Moore,  3  Wall.  Jr.  (U.  S.)  292;  Mitchell  v.  Berry,  1  Met.  (Ky.)  602. 

*  Bunce  v.  Wolcott,  2  Conn.  54.  In  Dugan  v.  Giltings.  3  Gill  (Md.)  138,  the 
same  doctrine  was  held.  In  Allis  v.  Moore,  2  Allen  (Mass.)  306,  it  was  held 
that,  where  an  owner  of  land  has  been  disseised,  his  subsequent  insanity  will 
not  prevent  the  disseisor's  title  from  maturing  by  twenty  years'  adverse 
possession. 

3  Butler  v.  Howe,  13  Me.  397;  Keeton  v.  Keeton,  20  Mo.  530;  Sturt  v.  Mellish, 
2  Alk.  616;  Jordan  v.  Thornton,  7  Ga.  517. 

*  Martin  v.  Letty,  supra;  Robertson  v.  Wurdeman,  2  Hill  (S.  C.)  324;  Layton 
v.  State,  4  Hatr.  (Del.)  8;  Carter  v.  Cantrell,  ifi  Ark.  154. 

5  Warfield  v.  Fox,  53  Penn.  St.  382;  Howell  v.  Hair,  15  Ala.  194;  Favorite  v. 

Booher,  17  Ohio  St.  548;  Pryorz/.  Ryburn,  r6  Ark.  671;  Bucklin  v.  Ford,  5  Barb. 

(N.  Y '.)  393;  Wells  v.  Child,  12  Allen  (Mass.)  333:  The  Sam  Slick.  2  Curt.  (U.  S.) 

480;  Gaines  v.  Williams,  3  Ired.  (N.  C.)  L.  481;   Dozier  v.  Ellis,   28  Miss.  730; 

Sacia  v.   De  Graaf,  1  Cow.  (N.  Y.)  356;  Harrison  v.  Harrison,  39  Ala.  489.     In 

1   r  v.  Chicago,  etc.,  R.  Co.,  79  Iowa,  80,  there  is  a  dictum  to  the  effect  that 

-    ition  by  the  legislature  of  exceptions  to  the  statute  of  limitations  will 

not    preclude    the  court  from  applying  exceptions   to   such   statute    which   are 

raized  by  the  common  law,  other  than  those  prescribed  by  the  legislature, 

While  this  dictum  and  this  doctrine    were   wholly  unnecessary  to  the  decision. 


§252.]  DISABILITIES    IN    PERSONAL   ACTIONS.  559 

Thus,  the  circumstance  that  the  debtor  is  insolvent,  and  that  a 
suit  against  him  would  be  fruitless,  or  that  the  plaintiff  had  not 
the  means  to  bring  an  action,  does  not  create  a  bar  to  the  legal 
remedy  of  the  creditor.1     Nor  will  the  bankruptcy  of  a  creditor 

there  was  a  class  of  cases  in  which  it  was  held,  although  the  statute  made  no 
exception  upon  lhat  ground,  that  where  a  cause  of  action  had  been  fraudulently 
concealed  from  the  person  in  whose  favor  the  right  of  action  existed,  the  statuie 
did  not  begin  to  run  until  the  fraud  was  discovered,  although  this  doctrine 
never  found  much  support  in  the  courts  of  this  country  or  of  England.  Indeed, 
independent  of  the  statute  making  them,  no  exceptions  to  the  operation  of  the 
statute  existed,  except  in  equity,  nor  even  in  that  court  where  the  statute  was 
in  express  terms  made  applicable  to  courts  of  equity,  as  well  as  to  courts  of  law. 
The  court,  upholding  Boomer  Dist.  Twp.  v.  French,  40  Iowa,  601,  and  later  cases, 
said:  "  These  cases  measured  by  the  statuie  alone,  are  clearly  barred;  but  in 
that  case  this  court  held  the  rule  to  be  that  '  where  the  party  against  whom  a 
cause  of  action  existed  in  favor  of  another,  by  fraud  or  actual  fraudulent  con- 
cealment prevented  such  other  from  obtaining  knowledge  thereof,  the  statute 
would  only  commence  to  run  from  the  time  the  right  of  action  was  discovered, 
or  might,  by  the  means  of  diligence,  have  been  discovered.'  "  It  was  said  in 
Heiserman  v.  Burlington,  C.  R.  &  N.  R.  Co.,  63  Iowa,  736,  that  '  railroad  com- 
panies are  public  carriers,  and  those  who  employ  them  are  in  their  power,  and 
must  bow  to  the  rod  of  authority  which  they  hold  over  consignors  and  con- 
signees of  property  transported  by  them.  The  reason  for  the  rule  requiring 
disclosures  and  fair  dealing  applies  to  this  defendant  with  the  same  force  that 
it  did  to  French.  The  appellant  contends  that  when  exceptions  are  provided 
to  a  general  statute  it  excludes  all  others  than  those  expressed,  and  that  courts 
are  not  at  liberty  to  ingraft  other  exceptions  than  those  expressed  upon  such  a 
statute.  This  claim  finds  strong  support  in  the  following  cases  cited  by  coun- 
sel: Chemical  Nat.  Bank  v.  Kissanne,  32  Fed.  Rep.  429;  Engel  v.  Fischer,  102 
N.  Y.  400,  3  Cent.  Rep.  303;  Fee  v.  Fee,  10  Ohio,  470;  Amy  v.  Watertown,  130 
U.  S.  320,  22  Fed.  Rep.  418;  Alabama  Bank  v.  Dalton,  9  How.  (U.  S.)  526 
Kendall  v.  United  States,  107  U.  S.  123;  Favorite  v.  Booher,  17  Ohio  St.  548 
Woodbury  v.  ShacKleford,  19  Wis.  55;  Somerset  Co.  v.  Veghte,  44  N.  J.  L.  509 
Demarest  v.  Wynkoop,  3  Johns.  Ch.  129;  Miles  v.  Berry,  1  Hill,  L.  296;  Troup 
v.  Smith,  20  Johns.  33.  These  questions  were  presented  and  passed  upon  in  a 
number  of  those  cases,  holding  that  the  general  statute  excludes  all  others, 
and  that  when  the  legislature  has  made  exceptions  the  courts  can  make  none. 
Campbell  v.  Long,  20  Iowa,  382;  Shorick  v.  Bruce,  21  Iowa,  307;  Relfz/.  Eberly, 
23  Iowa,  469;  Gebhard  v.  Sattler,  40  Iowa,  152;  Miller  v.  Lesser,  71  Iowa.  147. 
Boomer  Dist.  Twp.  v,  French  finds  strong  support  in  the  authorities  cited  in 
the  opinion.  Sherwood  v.  Sutton,  5  Mason,  143,  wherein.  Judge  Story  reviews 
many  cases,  shows  a  diversity  of  rulings  on  this  question  by  the  courts  of  dif- 
ferent States.  Boomer  Dist.  Twp.  v.  French  was  approved.  Humphreys  v. 
Mattoon,  43  Iowa,  556;  Findley  v.  Stewart,  46  Iowa,  655;  Brunson  v.  Ballou, 
70  Iowa,  34;  Bradford  v.  McCormick,  71  Iowa,  129;  Wilder  v.  Secor,  72  Iowa, 
161:  Shreves  v.  Leonard,  56  Iowa,  74.  We  think  there  is  no  sufficient  reason 
for  now  reversing  the  conclusion  there  announced. 

1  Mason  v.  Crosby,  Davies(U.  S.)  303.     But  in  this  case  the  pecuniary  embar- 


560  STATUTES    OF    LIMITATION.  [CHAP.    XIX. 

excuse  delay  in  bringing  an  action  beyond  the  statutory  period.1 
In  Louisiana,  however,  when  an  insolvent  has  surrendered  his 
property,  prescription  is  suspended  as  to  his  creditors;  but  this 
is  held  not  to  apply  to  successions,  whether  solvent  or  insolvent.2 
So,  too,  in  that  State  it  is  held  that  the  rescription  of  a  judgment 
interrupts  prescription  against  the  hypothecary  action  on  the 
judgment.3  In  North  Carolina,  it  has  been  held  that,  where  a 
note  is  deposited  in  the  hands  of  a  master  by  order  of  a  court  of 
equity,  the  acts  of  limitation  are  thereby  suspended.4  It  may  be 
safely  said  that  the  courts  have  no  authority  to  make  any  excep- 
tions in  favor  of  the  party,  to  protect  him  from  the  consequences 
of  the  statute,  unless  they  come  clearly  within  the  letter  of  the 
saving  clauses  therein  contained,  and  that  the  exercise  of  any 
such  authority  by  the  courts  is  a  usurpation  of  legislative  powers 
by  it  which  is  wholly  unwarranted,  and  wheh  courts  should 
never  resort  to.  By  making  the  exceptions  which  exist  in  the 
statute  the  legislature  has  exercised  its  prerogative  power,  and 
the  fact  that  no  others  were  made  clearly  indicates  that  it  intended 
that  no  others  should  exist,  and  the  courts  have  no  power  to  add 
any,  however  much  the  ends  of  justice  in  a  particular  case  may 
demand  it.5 

Sec.   253.   Disability  of  Defendants.  —  It  will  be  perceived  that 
there    is   not    in  any  of   the   statutes   any  saving  in  favor  of  the 

rassments  of  the  plaintiff  were  held  sufficient  in  equity  to  excuse  delay  not 
beyond  the  period  of  legal  limitation  in  bringing  his  bill,  to  relieve  his  claim 
from  the  imputation  of  staleness,  and  especially  where  his  embarrassments 
were  occasicned  by  the  defendant. 

1  Harwell  v.  Steel,  17  Ala.  372. 

'Succession  of  Flower,  12  La.  An.  216;  West  v.  Creditors,  1  id.  365. 

5  Van  VVickle  v.  Garrett,  14  La,  An.  106. 

4  Kendall  v.  United  States,  107  U.  S.  123;  The  Sam  Slick,  2  Curt.  (U.  S.)  480; 
Lefnngwell  v.  Warren,  2  Black  (U.  S.)  599;  United  Slates  v.  Muhlenbrink,  1 
Woods  (U.  S.)  569;  Fisher  v.  Harnden,  1  Paine  (U.  S.)  55;  Amy  v.  Watertown, 
130  U.  S.  320.  There  can  be  no  exception  unless  expressly  named  in  the  stat- 
ute. Bank  v.  Dalton,  9  How.  (U.  S.)  522;  Dupleix  v.  De  Roven,  2  Vern.  540; 
Mclver  v.  Ragan,  2. Wheal.  (U.  S.)  25;  Hall  v.  Weyborn,  8  Salk.  420;  Beckford 
:  Wade,  17  Ves.  87,  and  the  rule  is  the  same  although  it  is  claimed  that  the 
Betting  up  the  statute  lias  been  guilty  of  fraud.  Bucklin  v.  Ford,  5  Barb. 
(N.  Y.)  393;  Humbert  v.  Trinity  Church,  24  Wend.  (N.  Y.)  587;  Leonard  v. 
Pitney,  5  Wend.  (N.  Y.)  30;  Conner  v.  Goodman,  104  111.  365;  United  States 
tillard,  \  Ben,  (U.  S.)  459;  Gaines  v.  Miller,  in  U.  S.  395;  Wood  v.  Car- 
i'i  U.  S.  135. 

k  V  u  n linger,  Cam.  &  \\  (N.  C.)  71. 


§  253-]  DISABILITIES    IN    PERSONAL   ACTIONS.  561 

plaintiff  on  account  of  any  disability  of  the  defendant,  and,  con- 
sequently, that  the  mere  circumstance  that  the  person  against 
whom  a  right  of  action  accrues  to  a  plaintiff,  himself  under  no 
legal  disability,  does  not  save  his  claim  from  the  operation  of  the 
statute  because  the  defendant  is  an  infant,  non  compos  mentis, 
a.  feme  covert,  or  alien  enemy;  and  this  was  also  the  case  under 
the  statue  of  James.1  The  reason  for  this  is  hardly  apparent,  in 
view  of  the  fact  that  the  plaintiff,  in  the  case  of  his  own  disa- 
bility, is  so  carefully  considered,  especially  in  cases  where  the 
defendant,  by  reason  of  disability  on  his  part,  cannot  be  made  a 
proper  party  to  an  action.2  But  while  in  the  statute  of  James, 
as  is  also  the  case  in  the  statutes  of  several  of  the  States  of  this 
country,  if  the  plaintiff  "is  beyond  seas,"  when  his  right  of 
action  accrued  to  him,  his  remedy  is  saved  to  him  until  his  return 
into  the  country,  yet  his  right  of  action  is  not  saved  by  reason  of 
the  defendant's  absence  "  beyond  seas;  "  and  unless  provision  is 
made  by  statute  for  the  service  of  process  upon  an  absent  defend- 
ant, who  has  no  known  residence,  place  of  business,  or  property 
in  the  State,  a  plaintiff's  claim  would  be  lost  because  of  the 
impossibility  of  making  service  upon  him. 

'Jones  v.  Turberville,  2  Ves.  Jr.  n;  Fladong  v.  Winter,  19  Ves.  196;  Fannin 
v.  Anderson,  7  Q.  B.  811;  Story  7/.  Fry,  I  Y.  &  C.  Ch.  603;  Williams  v.  Jones, 
13  East,  439. 

'  Banning  on  Limitations,  85. 

[stats,  of  lim. — 36.] 


5  62 


STATUTES   OF   LIMITATION. 


[CHAP.   XX. 


CHAPTER  XX. 

Adverse  Possession  and  Real  Actions. 


Sec   254,  Title  by,  under  Statutes. 

255.  Statutory    Provisions    as    to 

Adverse  Possession. 

256.  What  constitutes  a  Disseisin 

under  these  Statutes. 

257.  Entry  or  Possession  without 

Color  of  Tille. 

258.  Occupancy   where    Premises 

are  not  enclosed. 

259.  Entry  and    Possession    with 

Color  of  Title. 

260.  Executory    Contracts,    etc., 

Possession  under. 

261.  Mixed  Possession. 


Sec.  262.- Limits  upon  the  Operation 
of  Possession  by  Construc- 
tion. 

263.  Possession  by  Mistake. 

264.  Grantor  in  Possession. 

265.  Landlord  and  Tenant. 

266.  Co-tenants. 

267.  What  Possession  will  sustain 

Constructive  Possession. 
How      Adverse     Possession 

may  be  proved. 
Continuity  of  Possession. 
How   the  Continuity  of  the 

Possession  may  be  broken. 

271.  Tacking  Possession. 

272.  Effect  of  bringing  Ejectment. 


268. 


269. 
270. 


SEC,  254.  Title  by,  under  Statutes.  —  The  acquisition  of  the 
title  to  land  by  adverse  user  (a)  is  referable  to  and  predicated 
upon  the  statutes  of  limitations  in  force  in  the  several  States, 
which,  in  effect,  provide  that  an  uninterrupted  occupancy  of  lands 
by  a  person  who  has  in  fact  no  title  thereto,  for  a  certain  number 
of  years,  shall  operate  to  extinguish  the  title  of  the  true  owner 
thereto,  and  vest  a  right  to  the  premises  absolutely  in  the  occu- 
pier.1    The  object  of  these  statutes  is  to  quiet  the  titles  to  land, 

'Trim  v.  McPherson,  7  Coldw.  (Tenn.)  15.  In  Hopkins  v.  Calloway,  id.  37, 
it  was  held  that  an  adverse  possession  under  a  conveyance  from  the  State  of 


(a)  This  important  and  extensive 
topic  will  be  found  fully  discussed  in 
the  following  recent  authorities;  1 
Cyclopedia  of  Law  and  Proc,  p.  968; 
Atkyns  v.  Horde,  3  Smith's  Lead. 
'  (gih  Am.   ed.),    pp.  1869,  1986,  n.; 

Gray  ..  Bond,  25  Ruling  Cases,  339, 
344,  11. ;  Preeble  v.  Maine  Cent.  R.  Co. 
Me.),  21  L.  R  A.  829,  and  n.;  Baker 
v.  I  takwood  (N.  Y.),  10  id.  387,  and  n.; 
1  Am.  and  Eng.  Encyc.  of  Law(2ded.), 
p.  787;  1  Jones  on  Real  Property,  ch. 
7;  1  Abbott's  N.  V.  Cyclopedic  Digest, 
p.  216:  Riggs  ■>.  Riley  (Ind.),  27  Cent. 
L.   I    87,  and    n. 

I  in-  (  l. limanl  by  adverse  possession 
does   not  abandon  01   impair  his  own 


title  by  purchasing  an  outstanding 
claim  of  title  from  a  third  person.  War- 
ren v.  Bowdran,  156  Mass.  280.  The 
characteristic  of  such  title  is  always 
that  it  is  acquired  without  the  consent 
and  against  the  will  of  the  former 
owner.  Marshall  v.  Taylor,  [1895]  1 
Ch.  641,  650;  Middlesex  Co.  v.  Lane, 
149  Mass.  101 ;  14  Harvard  L.  Rev.  149. 
The  elder  of  different  possessions  pre- 
vails when  neither  party  has  the  legal 
title,  Reddick  v.  Long,  124  Ala.  260. 
The  statute,  when  a  bar  to  a  direct 
proceeding  by  the  original  owner,  can- 
not be  defeated  by  indirection  within 
the  jurisdiction  where  it  is  the  law. 
Chapin  v,  Freeland,  142  Mass.  382,  386. 


§254-]  ADVERSE    POSSESSION*  AND    REAL    ACTIONS.  56 


and  prevent  that  confusion  relative  thereto  which  would  neces- 
sarily exist  if  no  period  was  limited  within  which  an  entry  upon 
lands  could  be  made;  and  they  are  believed  to  be  of  even  more 
importance  to  the  interests  of  society  than  those  relating  to  per- 
sonal actions.  The  effect  of  these  statutes  generally  is,  not  to 
transfer  the  fee  to  lands  from  the  true  owner  to  the  occupier,  but 
to  destroy  the  remedy  of  the  true  owner  for  their  recovery  by 
action,  and  to  vest  an  absolute  right  of  exclusive  possession  in 
the  occupier  as  against  the  true  owner  and  all  the  world,  and  a 
right  which  is  transferable  and  vests  in  his  grantees  a  right  to  the 
lands  as  full  and  complete  as  could  be  conferred  by  the  owner  of 
the  fee.  In  a  word,  it  vests  in  the  occupier  a  title  to  the  premises 
by  possession,  which  is  in  every  respect  equal  to  a  conveyance  of 
the  fee.1  But  while  the  fee  does  not  pass  under  a  naked  adverse 
possession  for  the  requisite  period,  yet,  when  a  person  enters 
into  possession  under  color  of  title,  and  occupies  adversly  for  the 
requisite  period,  he  is  treated  as  being  clothed  with  the  title  to 
the  premises,  in  fee-simple.2  The  title  acquired  in  such  cases  is 
predicated  upon  the  presumption  that  the  party  in  possession  is 
the  real  owner,  or  that  the  real  owner  has  surrendered  or  aban- 
doned his  claim  to  the  premises,  or  he  would  have  asserted  his 
claim  thereto  within  the  requisite  period,  to  save  his  right.3  The 
first  statute  enacted  to  settle  the  title  to  lands  which  were  in  the 
adverse  occupancy  of  a  person  other  than  the  real  owner,  for  a 
long  pe  iod  of  time,  was  enacted  during  the  reign  of  Henry  VIII., 

North  Carolina,  for  the  statutory  period,  not  only  bars  the  remedy  of  the  party 
out  of  possession,  but  vests  an  absolute  estate  in  fee-simple  in  the  party  in 
possession;  but  that  where  a  person  without  color  of  title  occupies  land  for  the 
statutory  period,  so  that  the  claimant's  right  is  barred,  such  possession  does 
not  take  away  the  claimant's  right,  but  simply  bars  his  remedy;  and  no  subse- 
quent action  can  be  brought  by  the  claimant,  either  at  law  or  in  equity,  to  ques- 
tion the  title  of  the  occupier.  When  the  bar  of  the  statute  is  complete,  the  right 
of  the  person  entitled  to  its  benefits  is  as  perfect  as  though  he  was  actually 
invested  with  the  title  by  deed;  and  as  against  him  the  holder  of  the  paramount 
title  cannot  use  it  for  either  recovery  or  defense  until  he  has  destroyed  the  bar, 
either  by  purchase  or  limitation.  Hale  v.  Gladfelder,  52  111.  91.  In  New  Jer- 
sey, by  statute,  sixty  years's  continuous  possession  vests  a  full  and  complete 
title  in  the  occupier.  See  Appendix,  New  Jersey,  sec.  23.  In  Missouri,  it  is 
held  that  there  is  no  need  of  presuming  a  deed  from  possession  for  the  statutory 
period,  as  such  possession  by  itself  alone  is  evidence  of  an  estate  in  fee,  and 
equivalent  to  an  absolute  title.     Warfield  v.  Lindell,  38  Mo.  561. 

1  Trim  v.  McPherson,  7  Coldw.  (Tenn.)  15. 

*  Hopkins  v.  Calloway,  7  Coldw.  (Tenn.1  37;   Hale  v.  Gladfelder,  52  111.  91. 

3  Abell  v.  Harris,  ir  G.  &  J.  (Md.)  367;  Cooper  :'. .Smith,  9  S.  &  R.  (Penn.)  26. 


564  STATUTES    OF    LIMITATION.  [CHAP.    XX. 

a  copy  of  which  is  given  in  the  appendix  to  this  work.  This 
statute  fixed  the  period  of  occupancy  requisite  to  quiet  titles  at 
sixty  years,  and  was  regarded  with  great  favor.  The  period  was 
materially  lessened  by  Stat.  21  James  L,  c.  27,  and  twenty  years 
adverse  occupancy  was  fixed  upon  as  sufficient  to  defeat  the  true 
owner's  right  of  entry,  except  when  he  was  at  the  time  under  some 
one  of  the  disabilities  named  in  the  statute.  In  this  country, 
the  period  within  which  a  right  of  entry  is  barred  is  fixed  by  the 
statute  of  each  State.  In  Maine,  Massachusetts,  New  Hamp- 
shire, New  York,  Alabama,  Delaware,  Indiana,  Illinois,  Minne- 
sota, North  Carolina,  South  Carolina,  Oregon,  Maryland,1 
Wisconsin  and  Dakota,  the  period  is  twenty  years;  in  Ohio, 
Pennsylvania  and  Wyoming,  twenty-one  years;  in  Vermont, 
Connecticut,  Michigan,  Kentucky,  Kansas  and  Virginia,  fifteen 
years;  in  Missouri,  Mississippi,  Nebraska,  Texas,  West  Virginia 
and  New  Mexico,  ten  years;  in  Florida,  Tennessee,  Arkansas 
and  Utah,  seven  years;  and  in  California,  Colorado,  Nevada, 
Arizona,  Idaho  and  Montana,  five  years.  It  will  be  observed 
that  the  shortest  periods  are  adopted  in  the  new  States  and  the 
Territories,  and  the  wisdom  of  this  course  is  not  doubtful.  In 
some  of  the  States  different  periods  are  adopted  according  to  the 
character  of  the  estate  occupied,  or  the  nature  of  the  occupancy. 
Thus,  in  New  Jersey,  sixty  years'  possession  is  ordinarily  neces- 
sary; but  thirty  years'  occupancy  is  sufficient  when  the  pos- 
session commences  or  is  founded  on  a  proprietary  right  duly 
laid  thereon,  and  recorded  in  the  surveyor-general's  office.2  In 
Indiana,  a  purchaser  of  lands  under  an  execution,  as  well  as  all 
persons  claiming  under  him,  are  protected  after  ten  years  from 

1  In  Maryland,  the  statute  does  not  extend  to  any  possession  except  where 
'•  land  shall  be  taken  up  under  a  common  or  special  warrant,  or  warrant  of 
resurvey,  escheat,  or  proclamation   warrant." 

*  In   Arkansas,   when   the   plaintiff   does  not   claim    title    to    the    land,    and 

neither  he  nor  his  intestate  has  been  in  possession  for  five  years,  his  right  of 

entry  is  barred.     Where  a  person  claims  as,  or  under,  a  purchaser  of  lands  at 

a  judicial  sale,  his  title  cannot  be  impeached  after  five  years,  unless  the  person 

oing  the  right  of  entry  was  a  minor  or  of  unsound  mind  when  the  sale  was 

and   in  that  case  three  years  after  the  removal  of  the  disability  is  given; 

persons  holding  under  a  sheriff's  or  auditor's  sale  for  the  non-payment  of 

taxes,  or  who  have  redeemed  the  same  from  the  State  auditor  under  the  statute, 

or  who  hold  the  same  under  the  auditor's  deed,  are  protected,  unless  the  plain- 

t  17,  liis  ancestor,  predecessor,  or  grantor,  was  seised  or  possessed  of  the  lands 

m  within  1  wo  years  next  before  the  action  was  commenced. 


§254-]  ADVERSE    POSSESSION    AND    REAL    A(    [TONS.  565 

the  sale;  and  purchasers,  etc.,  from  executors,  administrators, 
guardians,  or  commissioners,  who  have  sold  under  a  judgment  of 
a  competent  court  directing  the  sale,  are  protected,  unless  action 
is  brought  within  five  years.2 

These  provisions,  however,  do  not  apply  to  lands  owned  by 
the  State  or  the  United  States,  nor  where  the  person  having  an 
adverse  title  to  the  lands  is  under  any  of  the  disabilities  specified 
in  the  statute,  and  commences  an  action  for  the  recovery  of  the 
lands  within  three  years  after  such  disabilities  are  removed.  {a) 

1  In  Illinois,  a  person  actually  residing  on  lands  for  seven  consecutive  years, 
having  a  connected  title  in  law  or  equity,  deducible  of  record  from  the  State  or 
the  United  States,  or  from  any  public  officer  or  person  authorized  to  sell  the 
same,  is  protected  against  all  claims  of  title  upon  which  action  is  not  brought 
within  that  period;  and  where  a  person  is  in  (he  actual  possession  of  lands 
under  color  of  title,  made  in  good  faith  for  seven  consecutive  years,  and  during 
such  period  pays  all  taxes  assessed  thereon,  he  is  adjudged  the  legal  owner  of 
such  lands  to  the  extent  and  according  to  the  purport  of  his  paper  title;  and 
the  same  provision  exists  in  favor  of  a  person  having  color  of  title  made  in 
good  faith  to  vacant  and  unoccupied  lands,  who  during  the  period  of  seven 
years  pays  the  taxes  thereon,  unless  some  person  having  a  better  title  within 
that  time  pays  the  taxes  thereon  assessed  for  one  or  more  years  during  such 
period. 

(a)  So  long  as  the  title  to  public  land  find  out  that  he  is  in  danger  of  losing 

is    in    the    United    States,    no   adverse  rights     are     due      process     of     law." 

possession  of  it  can,  under  a  State  stat-  Holmes,  Ch.  J.,  in   Tyler   v.    Court  of 

ute  of  limitations,  confer  a  title  which  Registration,    175    Mass.  71,    73,  citing 

will  prevail  in  a  Federal  court  against  Wheeler  v.  Jackson,  137  U.  S.  245,  258. 

the  legal  title  under  a  patent  from  the  "  Speaking  for  myself,  I  see  no  reason 

United  States.     Redfield  v.  Parks,  132  why  what  we  have  said  as  to  proceed- 

U.  S.  239.     Hence,  between  rival  indi-  ings?«  rem  in  general  should  not  apply 

vidual  claimants  of  land  acquired  from  to   such    proceedings  concerning  land, 

the  general  government,  the  statute  of  In  Arndt  v.  Griggs,  134  U.  S.  316,  327, 

limitations    does    not   begin    to  run  in  it  is  said  to  be  estaolished  that '  a  slate 

favor  of  an  adverse  claimant  in  posses-  has    power    by    statute   to    provide  for 

sion,  until   the  entryman   becomes  en-  the  adjudication  of  titles  to  real  estate 

titled  to  a  patent,  by  a  full  compliance  within     its     limits     as    against      non- 

with     the    law.        Ibid.;     Stephens     1.  residents  who  are  brought   into  court 

Moore,  116  Ala.   397;   Denver  &   R.  G.  only  by  publication.'     In  Hamilton  v. 

R.    Co.    v.    Wilson  (Col  ),  62    Pac.  843.  Brown,  161   U.    S.  256,  274,  it   was  de- 

As   to  acquiring  minerals  and  mining  clared  to  be  within  the  powerof  a  State 

lands  by  adverse  occupancy,  see  Risch  '  to  provide  for  determining  and  quiet- 

v.  Wiseman,  36  Oregon,  484;  Wood  v.  ing   the    title  to   real  estate  within  the 

Etiwanda   Water   Co.,  122  Col.   152;   1  limits  of  the  State  and  within  the  juris- 

Am.  and  Eng.  Encyc.  of  Law  (2d  ed.),  diction  of  the  court,  after  actual  notice 

p.  874;  Houser   v.    Christian,    108   Ga  to  all  known  claimants,  and  notice  bv 

469-  publication    to   all    other    persons.'     I 

Prescription  or  a  statute  of  limita-  doubt   whether  the  court  will  not  take 

tions  may  give  a  good  title  against  the  the  further  step   when  necessity,  and 

world  and  destroy  all  manner  of  out-  declare   the   power  of  the   States  to  do 

standing  claims  without  any  notice  or  the  same  thing  after  notice  by  publica- 

judicial  proceeding  at  all.     Time  and  lion  alone."     Holmes,  C.  J.,  in  Tyler 

the  chance  which  it  gives  the  owner  to  v.  Court  of   Registration,   supra,  p.  75, 


566  STATUTES   OF    LIMITATION.  [CHAP.   XX. 

In  Kentucky,  possession  for  seven  years  under  a  title  of  record 
from  the  Commonwealth  vests  the  title  in  the  occupier  against 
all  adverse  claimants  under  or  by  virtue  of  interfering  surveys  or 
patents,  except  where  the  claimant  at  the  time  a  cause  of  action 
accrued  was  under  some  one  of  the  disabilities  named  in  the 
statute.  In  Kansas,  an  action  for  the  recovery  of  land  sold  for 
taxes  is  barred  in  two  years  from  the  time  when  the  deed  is 
recorded,  for  lands  sold  on  execution  within  five  years  from  the 
recording  of  the  deed,  and  for  lands  sold  by  executors,  adminis- 
trators, or  guardians,  within  three  years  from  the  time  when  the 
deed  is  recorded;  in  all  other  cases  within  fifteen  years  from  the 
time  when  the  right  of  action  or  entry  accrued.  In  North  Caro- 
lina, the  State  is  barred  when  a  person  has  been  in  the  adverse 
occupancy  of  lands  belonging  to  it  under  visible  lines  or  bound- 
aries, for  thirty  years.  Where  a  person  has  been  in  the  posses- 
sion of  lands  with  visible  lines  and  boundaries  under  colorable 
title  for  seven  years,  such  possession  is  a  perpetual  bar  against 
all  persons  except  such  as  are  under  some  one  of  the  statutory 
disabilities,  and  railroad,  turnpike,  or  canal  companies.  In  all 
other  cases  twenty  years'  occupancy  under  known  or  visible 
boundaries  is  a  bar.  In  South  Carolina,  the  State  is  barred  in 
forty  years,  where,  during  that  period,  it  has  not  received  any 
rent  for,  or  profits  from,  the  land.  In  Michigan,  where  the  title 
to  land  is  claimed  by  or  through  some  deed  made  by  an  executor, 
administrator,  guardian,  sheriff,  or  other  proper  ministerial  officer 
under  the  order,  decree,  or  process  of  a  competent  court,  five 
years'  occupancy  under  such  deed  constitutes  a  bar  against  all 
persons  claiming   title   thereto;  and   an   occupancy  of   ten   years 

citing    Hulitig   v.   Kaw    Valley   R'y  &  of  such   a  statute  is  that  one,  who  is 

Impr.  Co.,   130  U.   S.   559,  564;   Parker  dispossessed    of    his    property,     must 

.    Overman,    18    Mow.    137,    140.     In  assert  his  ownership  thereto  by  action 

Tyler  v.   Court  of  Registration,  supra,  within    a   specified    time   or   be  barred 

Lathrop,  J.,  says  (p.  92),  in  his  dissent-  thereof;    that    is   to   say,    cease  to  be 

ing  opinion:     "  The  reference  made  in  such  owner.     But  no  statute  was  ever 

the  opinion  of  the  majority  of  the  court  passed  providing  thai  an  owner  in  pos- 

10    the   statute  of  limitations  makes  it  session    of   his   property  could    be  dis- 

iiv  to  State  in   passing  that  the  possessed  thereof  by  any  lapse  of  time, 

registration  act  cannot  be  supported  on  and  no  principle  is  deducible  from  the 

the   ground     on    which   the   statute  of  statute  of  limitations,  which  can  justify 

limitations  quiets  ti  I  1    ill  the  such   a   statute,  or  a  statute  providing 

world,    or   on    at  ils   deducible  that,  without  naming  him  as  a  defend- 

■  from,    it  is  unquestionably  within  ant,  or   without  giving   him    notice,  a 

the  constitutional  power  of  the  legisla-  court  can  by  decree  alone,  unaided  by 

ture  to  quiet  the  title  to  property  by   a  the  subsequent  lapse  of  time,  transfer 

Statute    of  limitations.     The   principle  his  property  to  another." 


§  255-j  ADVERSE    POSSESSION    AND    REAL   ACTIONS.  567 

under  a  deed  made  by  some  officer  of  the  State  or  of  the  United 
States  authorized  to  make  deeds  upon  the  sale  of  land  for  taxes 
assessed  thereon  and  levied  within  the  State,  makes  a  complete 
bar;  but  in  all  other  cases  fifteen  years' s  occupancy  is  necessary. 
In  Nevada,  a  person  in  possession  of  mining  claims,  and  working 
the  same  in  the  usual  and  customary  manner  is  protected  by  two 
years'  possession.  In  Tennessee,  a  continuous  adverse  possession 
for  twenty  years  of  lands,  held  under  a  conveyance  from  hus- 
band and  wife  executed  upon  valuable  consideration  without 
fraud  upon  the  wife,  and  registered  more  than  twenty  years 
before  any  suit  commenced,  is  an  absolute  bar  to  the  husband 
and  wife  and  all  persons  claiming  title  by  or  through  them.1  In 
Texas,  a  person  holding  peaceable  and  adverse  possession  of 
land,  cultivating,  using  or  enjoying  the  same  for  five  years,  pay- 
ing the  taxes,  and  claiming  under  a  deed  duly  registered,  is  pro- 
tected, unless  the  deed  was  forged  or  executed  under  a  forged 
power  of  attorney;2  in  other  cases  ten  years'  possession  is  neces- 
sary; but  where  a  person  has  had  peaceable  and  uninterrupted 
possession  of  lands  for  three  years  under  title  or  color  of  title,  as 
defined  by  section  3341,  such  possession  constitutes  a  complete 
bar.  In  Virginia,  a  distinction  is  made  between  lands  lying  on 
the  east  side  of  the  Allegheny  mountains  and  those  upon  the 
west  side.  As  to  the  former,  fifteen  years'  possession  is  required  ; 
as  to  the  latter,  only  ten  years'  possession  is  necessary.  In  some 
of  the  States,  a  distinction  is  made  as  to  the  quality  of  the  estate 
acquired,  where  the  occupant  enters  and  holds  under  a  color  of 
title,  and  where  he  merely  holds  by  naked  possession.  So,  too, 
in  several  States  a  distinction  is  made  between  the  character  of 
occupancy  required  in  the  two  cases;  but  it  will  be  unnecessary 
to  refer  to  that  matter  at  length  in  this  place,  as  this  distinction 
will  be  developed  in  another  part  of  this  chapter.    . 

SEC.  255.  Statutory  Provisions  as  to  Adverse  Possession.  —  In 
New  York,  for  the  purpose  of  constituting  adverse  possession 
under  a  claim  of  title  founded  upon  a  written  instrument,  the 
premises  are  deemed  to  have  been  possessed  and  occupied  in 
either  of  the  following  cases:  1st,  where  it  has  been  usually 
cultivated  and  improved ;  2d,  where  it  has  been  protected  by  a. 

1  Tennessee  Code  (1896,  by  Shannon),  §  4460. 
'Texas  Rev.  Stats.  (1895),  §£  3340-33;:,. 


568  STATUTES    OF    LIMITATION.  [CHAP.     XX.. 

substantial  enclosure;  and,  3d,  where,  although  not  enclosed,  it 
has  been  used  for  the  supply  of  fuel,  or  of  fencing  timber  for  the 
purposes  of  husbandry,  or  for  the  ordinary  use  of  the  occupant. 
And  where  a  known  farm  or  a  single  lot  has  been  partly  improved, 
the  other  portion,  if  used  according  to  the  usual  course  and 
custom  of  the  adjoining  country,  is  treated  as  within  the  posses- 
sion of  such  occupant.  Under  this  statute  it  is  held  that  the 
occupancy  need  not  be  under  a  valid  deed,  but  that  if  the  deed 
covers  the  land,  and  there  has  been  an  occupancy  under  it  for 
the  requisite  period,  although  the  person  executing  the  deed  has 
no  authority  to  do  so,  it  is  sufficient.1  (a)  Substantially  the  same 
provision  exists  in  the  statutes  of  Florida,  South  Carolina,  Cali- 
fornia, Wisconsin,  Nevada,  Arizona,  Dakota,  Idaho,  Montana, 
and  Utah.  In  New  York  and  in  all  these  States,2  it  is  also  pro- 
vided that  where  a  person  claims  title  not  founded  on  a  written 
instrument,  judgment,  or  decree,  such  land  shall  be  deemed  to 
have  been  occupied  and  possessed,  1st,  where  it  has  been  pro- 
jected by  a  substantial  fence;  and,  2d,  where  it  has  been  usually 
cultivated  and  improved. 

Under  these  statutes,  specifically  defining  what  possession  shall 
be  regarded  as  adverse,  the  possession,  in  order  to  be  operative, 
must  be  shown  to  be  by  some  one  of  the  modes  stated  in  the 
statute,  or  it  will  be  no  protection,  however  long  such  possession 
may  have  been  continued.3  Under  these  statutes,  in  order  to 
acquire   a  title  by  possession   on  account   of   an  enclosure,   the 

'Bishop's  Ann.  Code  (4th  ed.  1895),  §§  369-372;  Hilton  v.  Bender,  2  Hun 
(NT.  Y.)  1. 

5  Wisconsin  Stats.,  §  4212.  But  in  this  State,  where  the  possession  is  under 
a  written  title,  or  upon  a  judgment,  ten  years'  occupancy  in  this  manner  con- 
stitutes a  bar;  but  in  all  other  cases  twenty  years'  occupancy  is  required. 

1st  Hampton  v.  Kirk,  68  N.  Y.  459;  Cleveland  v.  Crawford,  7  Hun  (N.  Y.) 

It  is  not  enough  in  New  York  to  one,  the  occupant  must  make  his  pos- 
claim  title,  but  the  defendant  must  session  so  visibly  hostile  and  notorious, 
claim  under  some  specific  title,  and  this  and  so  apparently  exclusive  and  ad- 
must  be  disclosed  so  that  the  court  may  verse,  as  to  justify  an  inference  of 
see  that  it  is  adverse  tn  that  of  the  knowledge  on  the  part  of  the  tenant 
grantor  in  the  deed  assailed.  Dawley  sought  to  be  ousted,  and  of  laches  if  he 
v.  Brown,  ~]<)  N.  V.  390,  396;    Heller  v.  fails  to  discover  and  assert  his  rights. 

I,    C54    id.   299.     See     Knellar    v.  Culver  v.  Rhodes,  87  N.  Y.  348.     Equity 

Lang,    137   id.    5R9;    Sanders   v.    Ried-  will  prevent  a  threatened  cloud  on  title 

43  \'.  V.  Su pp.  127;    De  St.  I.tu-  when  there  is  a  determination  to  create 

rent  It.,  4.3    id.  730.      In  the  such  cloud,  and  a  real  danger.     King 

r.rv  of  co-tenants,  if  no  explicit  notice  v.  Townshend,  141  N.  Y.  358. 
is  given    of   the   denial  of  the   right  of 


§  -256-J  ADVERSE    POSSESSION    AND    REAL   ACTIONS.  569 

paity  claiming  must  show  that  he  has  maintained  during  the 
requisite  period  a  substantial  enclosure  and  an  actual  occupancy, 
definite,  positive,  and  notorious;1  and  merely  keeping  up  a  fence 
already  built  by  a  neighbor  does  not  constitute  a  sufficient 
enclosure,  within  the  statute.2  If  cultivation  and  improvement 
aie  relied  upon  to  give  title,  both  must  be  shown;  and  merely 
reaping,  of  itself,  is  not  cultivation;  nor  does  the  mowing  of 
grass  or  the  cutting  of  brush  alone  amount  to  an  improvement, 
within  the  meaning  of  the  statute.3  Where  land  is  entered  upon 
under  a  claim  of,  but  without  written  title,  there  must  be  a. pedis 
possessio,  or  an  enclosure.  But  this  does  not  necessarily  contem- 
plate an  artificial  fence.  If  the  possession  is  actual,  visible,  exclu- 
sive, and  notorious,  so  far  as  the  actual  occupancy  extends  by 
actual  cultivation  and  improvement  for  the  ordinary  purposes  of 
agriculture  for  the  requisite  period,  a  title  may  be  acquired,  but 
cannot,  as  in  the  case  of  an  actual  fence  or  color  of  title,  be 
extended  by  construction  to  embrace  lands  not  so  actually  culti- 
vated and  improved.4  Occasionally  taking  wood  and  timber  from 
a  wood-lot,  or  using  it  for  a  pasture,  does  not  amount  to  cultiva- 
tion and  improvement,  within  the  meaning  of  the  statute,  so  as 
to  give  title  by  possession,  in  the  absence  of  an  enclosure. 

SEC.  256.  What  constitutes  a  Disseisin  under  these  Statutes.  — 
Except  where  the  statute  defines  the  species  of  possession  which 
shall  be  regarded  as  adverse,  so  as  to  bar  a  right  of  entry,  the 
question  is  left  for  settlement  by  the  courts,  in  view  of  the  lan- 
guage of  the  statute  under  which  the  question  arises.     In  Maine,5 

1  Jackson  v.  Schoonmaker,  2  Johns.  (N.  Y.)  230;  McFarlane  v.  Kerr,  10  Bosw. 
(N.  Y.)  249. 

1  Doolittle  v.  Tice,  41  Barb.  (N.  Y.)  181.  Where  a  lot  was  inclosed  on  one 
side  by  a  highway,  on  two  sides  by  a  fence,  and  on  the  other  side  by  a  distinct 
line  of  marked  trees  extending  from  corner  stake  to  corner  stake,  it  was  held 
that  the  lot  was  noi  protected  by  a  substantial  inclosure,  within  the  meaning  of 
the  Code.     Pope  v.  Hanmer,  8  Hun  (N.  Y.)  265. 

3  Doolittle  v.  Tice,  supra. 

*  Becker  v.  Van  Valkenburgh,  2g  Barb.  (M.  Y.)  3T9;  Jackson  v.  Halstead,  5 
Cow.  (N.  Y.)  216;  Jackson  v.  Camp,  1  id.  605;  Sharp  v.  Brandow,  15  Wend. 
(N.  Y.)  597;  Jackson  v.  Woodruff,  1  Cow.  (N.  Y.)  276.  In  Pope  v.  Hanmer,  8 
Hun  (N.  Y.)  265,  these  questions  were  fully  considered,  reference  being  specially 
made  to  the  Code,  §§  369,  372;  Doolittle  v.  Tice,  41  Barb.  (N.  Y.)  i8r;  Hallas 
v.  Bell,  53  id.  247;  Lane  v,  Gould,  10  id.  254;  Jackson  v.  Woodruff,  1  Cow.  (N. 
Y.)  276;  Crary  v.  Goodman,  22  N.  Y.  170. 

s  Rev.  Stats.  (1883),  ch.  105,  §  1. 


5/0  STATUTES    OF    LIMITATION.  [CHAP.    XX. 

the  language  of  the  statute  is,  "  No  person  shall  commence 
any  real  or  mixed  action  for  the  recovery  of  lands,  or  make  an 
entry  thereon,  unless  within  twenty  years  after  the  right  to  do 
so  first  accrued ;  or  within  twenty  years  after  he,  or  those  under 
whom  he  claims,  were  seised  or  possessed  of  the  premises;"  (#) 
and  this  is  practically  the  provision  in  Vermont,  New  Hamp- 
shire, Connecticut,  Massachusetts,  Arkansas,  Delaware,1  Illinois, 
Mississippi,2  (V)  Minnesota,  North  Carolina,  Ohio,3  Oregon,  Michi- 
gan,4 Nebraska,  Tennessee,  Virginia,  West  Virginia,  New 
Mexico,  and  Wyoming.  The  language  of  the  statute  in  all  of 
these  States  is  not  identical  with  that  of  the  Maine  statute,  nor 
is  the  period  of  limitation ;  but  the  practical  effect  is  the  same, 
and  in  none  of  them  is  there  any  provision  as  to  what  shall  be 
deemed  an  adverse  possession  sufficient  to  bar  a  suit  or  entry. 
From  this  summary  of  the  statutes  it  will  be  observed  that  the 
statute  will  not  commence  to  run  until  a  cause  of  action  has  arisen 
in  favor  of  the  person  having  the  rightful  title;  in  other  words, 

1  In  Indiana,  the  statute  provides  "  for  the  recovery  of  the  possession  of  real 
estaie  twenty  years,"  {b)  which  is  practically  the  same,  as  under  this  statute 
the  right  of  action  does  not  accrue  until  there  has  been  a  disseisin,  i  Ind. 
Stats.  (1S94,  by  Burns),  §  294.,  ch.  6.  In  Kentucky,  the  provision  is,  "  An 
action  for  the  recovery  of  real  property  can  only  be  brought  within  fifteen  years 
after  the  right  to  institute  it  first  accrued."     Ky.  Stats.  (1899,  by  Carroll),  §  2805. 

9  In  this  Slate  the  language  is  not  the  same,  but  its  effect  is  identical,  and  the 
statute  in  this  respect  is  expressly  applied  lo  courts  of  equity  as  well  as  courts 
of  law.     Code  (1892),  §§  2730,  2731. 

3  In  this  Slate  the  language  is,  "  An  action  for  the  recovery  of  the  title  or  pos- 
session of  real  property  can  only  be  brought  within  twenty-one  years  after  the 
cause  of  such  action  accrues."     Sec.  4977. 

4  In  this  State  the  statute  specifies  when  the  right  of  action  shall  be  treated  as 
having  accrued;  but  the  provisions  in  this  respect  do  not  vary  essentially  from 
those  which  exist  where  no  such  provisions  are  made.      Compiled  Laws  (1897), 

'  973  I      ' 

(<r)  This  provision  does  not  apply  to  necessary  to  an  adverse  possession,  it 

an  action  of  dower  whcih  is  not  barred  is    sufficient    if    there    is.   for    the   pre- 

until  twenty  years  and  one  month  after  scribed  period,  assertion  of  ownership 

demand.     Chase  v.  Allev,  82   Me.  234,  and   unbroken    possession.     Collett    v. 

tg    Atl.    3<i7:     Hastings    v.    Mace,    157  Commissioners,    119  Ind.   27;   Ilerff  v. 

I'j  /.     32    N.    E.    668;    Robie    v.  Griggs,  121  id.  471. 
Flinders,    33    N.    H.    524;    Munroe    v.         (c)  In    this    State,    as   elsewhere,    a 
id.  580    Long  v.  Kansas  City  claim  of  title  under  a  parol  gift  or  pur- 
.  Yards  Co.,  107  Mo.  298,  17  S.  W.  chase,   accompanied  by  entry  and  ad- 
verse holding,  may  ripen  into  an  inde- 
nt  This  limitation  applies   to  an  ac-  feasible  title  bv  the  lapse  of  the  solu- 
tion for  breach  of  the  covenant  of  war-  tory    period   of  limitations.     Davis   v. 
in  a  deed.     Hyatt  v.  Mattingly,  Davis,  68  Miss.  478. 
Ind.  271'.     Color  of  title  not  being 


§  256.]  ADVERSE    POSSESSION    AND    REAL   ACTIONS.  571 

until  he  has  been  disseised  by  the  person  in  possession  or  those 
in  privity  with  him  in  the  possession.  And  a  person  who  enters 
upon  the  land  of  another,  with  the  intention  of  usurping  the 
possession,  and  carries  that  intention  into  effect  by  retaining  the 
exclusive  possession  of  the  premises,  actually  disseises  the  owner; l 
and  this  is  so  whether  the  entry  and  possession  are  contrary  to 
the  will  of  the  owner  or  not,  because,  as  we  shall  see  hereafter, 
it  is  immaterial  whether  the  owner  knows  of  the  disseisin  or  not;2 
nor  is  it  necessary  that  the  entry  should  be  wrongful,  because, 
although  a  person  enters  lawfully,  yet  if,  after  entry,  he  calls  the 
owner's  title  in  question,  and  claims  the  land  as  his  own,  or 
usurps  dominion  over  it,  either  by  words  or  acts,  he  is  a  dis- 
seisor ; 3  and  if  suffered  to  remain  in  possession  under  such  circum- 
stances, without  entry  or  action  by  the  owner,  for  the  requisite 
statutory  period,  he  acquires  a  title  thereto  by  possession.  But 
where  the  possession  commences  by  the  permission  of  the  owner, 
there  can  be  no  disseisin  or  adverse  possession  until  there  has 
been  a  disclaimer  by  the  assertion  of  an  adverse  title,  and  notice 
thereof,  either  actual  or  constructive.4^)  There  are  two  kinds 
of  disseisin :  one  a  disseisin  in  fact,  and  the  other  a  disseisin  by 
election.5     A  disseisin  in  fact  is  one  whereby  the  original  owner 

'Towle  v.  Ayer,  8  N.  H.  57;  Melvin  v.  Proprietors,  5  Met.  (Mass.)  15;  Co. 
Liu.  279. 

'  Brown  v.  King,  5  Met.  (Mass.)  173;  Poignard  v.  Smith,  6  Pick.  (Mass.)  172. 

3  Walker  v.  Wilson,  4  N.  H.  217. 

4  Hudson  v.  Putney,  14  W.  Va.  461;   Foulke  v.  Bond,  41  N.  J.  L.  527. 

6  This  species  of  disseisin  is  recognized  in  Atkyns  v.  Horde,  2  Covvp.  689,  also 
in  2  Inst.  412.  But  it  seems  that,  in  order  to  enable  the  owner  to  elect  to  treat 
an  act  as  a  disseisin,  the  entry  must  be  injuste  ci  sinejudicio. 

(a)  See  Legg  v.  Horn,  45  Conn.  415;  continue  subordinate  to  the  legal  title 
Wiseman  v.  Lucksinger,  84  N.  Y.  31;  until  notice  is  by  some  means  brought 
Coleman  v.  Pickett,  31  N.  Y.  S.  4S0;  home  to  the  original  owner.  Ross  v 
Morse  v.  Sherman,  155  Mass.  222;  Pres-  Veech  (Ky.),  58  S.  W.  475;  Whitney  v. 
cott  v.  Prescott,  175  Mass.  64,  66;  Wheeler  Cotton  Mills,  151  Mass.  396,' 
Bond  v.  OGara,  177  Mass.  139;  Coff-  407.  And  all  presumptions  are  prima, 
rin  v.  Cole.  67  Vt.  226;  Great  Falls  W.  facie  in  favor  of  the  true  owner.  Illi- 
W.  Co.  v.  Gt.  Northern  Ry.  Co.,  21  nois  Steel  Co.  v.  Bilot  (Wis.),  85  N.  W. 
Mont.  4S7:  Thoemke  v.  Fiedler,  91  402,  406;  Heermans  v.  Schmaltz,  10 
Wis.  386;  Yeager  v.  Woodruff,  17  Utah,  Biss.  (U.  S.)  323.  The  fact  that  such 
361.  In  the  absence  of  evidence  of  owner  is  absent  from  home,  and  does 
what  claim  the  original  entry  was  made  not  see  or  know  of  the  claimant's  hostile 
under,  it  is  always  presumed  to  have  acts,  is  immaterial.  Talbott  v.  Wood- 
been  made  in  subordination  to  the  legal  ford  (W.  Va.),  37  S.  E.  580.  As  to  the 
title.  Sanders  v.  Riedinger,  51  N.  Y.  notoriety  required  to  support  a  claim 
S.  937,  940,  58  N.  E.  1092;  Lucy  v.  by  adverse  user,  see  Gould  on  Waters, 
Tenn.  &  Coosa  R.  Co.,  92  Ala.  246,  §337;  De  Frieze  v.  Quint  (94  Cal.  653), 
250.     An  entry  so  made  is  presumed  to  28  Am.  St.  Rep.  151,  and  n. 


572  STATUTES    OF    LIMITATION.  [CHAP.    XX. 

is  divested  of  his  seisin,  and  of  all  right  in  relation  thereto, 
except  his  right  of  entry  and  of  property,  or  of  action  for  its 
recovery.  A  disseisin  by  election  is  when  an  act  is  done  upon 
or  in  relation  to  lands,  which  is  equivocal,  and  may  be  treated 
either  as  a  trespass  or  a  disseisin  according  to  the  intention  with 
which  it  was  done,  in  which  case  the  law  will  not  permit  the 
wrong-doer  to  qualify  his  own  wrong,  and  claim  it  to  be  a  mere 
trespass,  unless  the  owner  elects  to  so  regard  it.1  It  frequently 
occurs  that  the  courts  fail  to  observe  the  proper  distinction 
between  these  two  classes  of  disseisins;  but  for  the  purposes  of 
the  application  of  the  statute,  and  ascertaining  the  period  from 
which  it  begins  to  run,  this  distinction  is  important,  and  quite 
apparent,  because  there  can  be  no  disseisin  in  fact,  except  by  the 
wrongful  entry  of  a  person  claiming  the  freehold,  and  an  actual 
ouster  or  expulsion  of  the  true  owner,  or  by  some  other  act  which 
is  tantamount  thereto; 2  and  the  claim  or  color  of  title  must  exist 
at  the  commencement,  and  any  other  entry  is  a  mere  trespass;3 
and  the  person  who  is  put  out  of  possession  may  maintain  eject- 
ment or  trespass  against  the  wrong-doer,  at  his  election.4  Of 
course,  where  the  statute  defines  the  species  of  possession  requi- 
site to  bar  the  claim  of  the  true  owner,  for  the  purposes  of  this 
statute,  such  a  possession  only  will  amount  to  a  disseisin.  There 
are  loose  dicta  in  the  cases  upon  this  question  where  the  statute 
does  not  define  the  species  of  possession  required,  and  many  mis- 
statements of  the  true  doctrine  or  rules  that  control  in  determin- 
ing whether  there  has  been  a  disseisin  and  a  sufficient  adverse 
possession  to  divest  the  true  owner  of  his  title  to  lands,  and  as  to 
the  character  of  the  possession  requisite  to  work  this  result.  But 
the  whole  matter  hinges  upon  the  circumstance  whether  there 
has  been  a  disseisin  in  fact,  and  an  actual  expulsion  of  the  true 
owner  for  the  full  statutory  period;  and  in  all  cases  where  there 
has  been,  the  possession  is  adverse,  and  the  true  owner  is  barred, 
both  as  to  his  right  of  entry  upon,  and  his  remedy  for  the  recovery 
of,  the  land  ;  and  this  has  been  held  to  be  the  case  under  these 
statutes  in  Connecticut  and  Michigan,  where  the  original  entry  is 

1  Pi  iscott  v.  N'evers,  4  Mas.  (U.  S.)  326;  Blunden  v.  Baugh,  Cro.  Car.  302. 
'  Varick  v.  Jackson,  2  Wend.  (N.  Y.)  166. 

*  Co.  Liti.  153  bj  4  Bouviet's  Law  Die.  558. 

*  Wheeler  v.  Bates,  21  N.  H.  460;  Bateman  v.  Allen,  Cro.  Eliz.  437;  Allen  v. 
Rivin^ton,  2  Saund.  tti;  Cluie  v.  Voris,  31  Barb.  (N.  Y.)  511;  Jackson  v. 
Harder    1  Johns.  (N.  Y.)  202. 


g-  256.  j  ADVERSE    POSSESSION    AND    REAL    ACTIONS.  573 

wrongful,  although  the  person  entering  does  not  claim  title  in 
himself,  or  deny  the  title  of  the  legal  owner  if  he  usurps  dominion 
over  the  land  at  the  time  of  entry,  and  uses  and  occupies  it  exclu- 
sively and  continuously  as  his  own  for  the  requisite  statutory 
period,  as  in  such  a  case,  as  in  instances  where  there  is  entry 
under  a  conveyance,  the  law  presumes  that  the  holding  was 
adverse,  where  the  possession  is  accompanied  with  acts  which  are 
the  usual  insignia  of  ownership.  l  In  other  words,  any  entry 
upon  lands  without  the  consent  of  the  true  owner,  and  continuous 
occupancy  thereof  by  the  person  entering,  as  his  own,  which 
excludes  the  possession,  actual  or  constructive,  of  such  owner, 
for  the  full  statutory  period,  is  held  by  the  courts  of  the  States 
named  to  be  adverse,  within  the  meaning  of  the  statute,  and 
divests  the  legal  owner  of  all  right  to  such  lands,  whether  such 
entry  was  made  under  a  claim  of  title  or  not.2  This  doctrine 
is  in  strict  accordance  with  the  definition  of  a  disseisin  given 
by  Littleton.3  ''A  disseisin,''  says  he,  "is  where  a  man  entereth 
into  any  lands  or  tenements  where  his  entrance  is  not  congeable, 
and  ousteth  him  who  has  the  freehold  ;  "  and  of  Coke,  who  says : 4 
"  A  disseisin  is  the  putting  a  man  out  of  possession,  and  ever 
implieth  a  wrong.  But  dispossession  or  ejectment  is  a  putting 
out  of  possession,  and  may  be  by  right  or  by  wrong."5     Under 

•Ingersoll,  J.,  in  Bryan  v.  Atwater,  5  Day  (Conn.)  181;  French  v.  Pearce,  S 
Conn.  442.  In  Bryan  v.  Atwater,  supra,  an  adverse  possession  is  denned  by 
Ingersoll,  J.,  to  be  "a  possession  not  under  the  legal  proprietor,  but  entered 
into  without  his  consent,  either  directly  or  indirectly  given.  It  is  a  possession 
by  which  he  is  disseised  and  ousted  of  the  lands  so  possessed." 

2  See  Kennebeck  Purchase  v.  Laboree,  2  Me.  275.  In  Kenneteck  Purchase 
v.  Springer,  4  Mass.  416,  Parsons,  C.  J.,  said:  "  To  constitute  an  actual  ouster 
of  him  who  was  seised,  the  disseisor  must  have  the  actual  exclusive  occupation 
of  the  land  claiming  to  hold  it  against  him  who  was  seised,  or  he  must,  actually 
turn  him  out  of  possession."  In  Patterson  v.  Reigle,  4  Penn.  St.  201.it  was 
held  that  one  who  enters  upon  the  land  of  an  unknown  owner,  with  intent  to 
hold  until  the  real  owner  appears,  has  an  adverse  possession  which  will  ripen 
into  a  title  by  the  lapse  of  the  statutory  period.  See  Stokes  v.  Berry,  2  Salk. 
421;  Hellings  v.  Bird,  11  East,  49;  Walton  v.  Ogden,  1  Johns.  (N.  Y.)  156;  Gris- 
wold  v.  Bond,  5  id.  230;  Bound  v.  Sharp,  9  id.  162;  Hinkley  v.  Crouse,  125  N. 
Y.  730.  In  Michigan,  in  Campau  v.  Dubois,  39  Mich.  274,  it  was  held  that  no 
claim  of  title  is  necessary  to  perfect  an  adverse  holding. 

3  Co.  Litt.  279. 

4  Co.  Litt.  153. 

6 "  Disseisin,"  he  continues,  "  is  a  personal  trespass,  or  tortious  ouster  of  the 
seisin;"  and  Aston,  J.,  gives  full  countenance  to  the  definition  of  a  disseisin  by 
Littleton,  and  agrees  with  him   and    Coke  that   to  operate  a   disseisin    two  ele- 


574  STATUTES   OF   LIMITATION.  [CHAP.   XX. 

this  definition  it  would  seem  to  follow  that,  if  the  entry  was  made 
by  the  permission  of  the  owner,  possession,  however  long  con- 
tinued, will  be  treated  as  the  possession  of  such  owner,  and  in 
subservience  to  his  title,  until  the  person  in  possession  has  dis- 
claimed, and  set  up  an  adverse  title  thereto  in  himself  or  some 
third  person,  and  given  the  owner  notice  thereof,  actual  or  con- 
structive ; '  but  that  an  adverse  user  may  be  presumed  from  a  long 
possession  without  the  payment  of  rent  or  other  recognition  of 
the  owner's  title,  or  on  account  for  the  rents  or  profits  of  the 
land.2  But  while,  as  already  stated,  it  is  held  in  those  States  that 
the  entry  need  not  necessarily  be  made  under  a  claim  of  title,  yet 
whether  it  is  so  made  or  not  is  treated  as  an  important  element 
in  the  determination  of  the  question  whether  there  has  in  fact 
been  an  adverse  user,  and  an  actual  ouster  of  the  true  owner;  but 
the  real  question  as  to  whether  there  has  been  an  actual  ouster  of 
the  true  owner  and  a  consequent  disseisin  is  one  which  depends 
upon  all  the  circumstances,  and  may  be  solved  in  favor  of  the 
occupant,  although  no  claim  of  title  in  himself  is  shown  to  have 
existed.3  It  is  the  fact  of  exclusive  occupancy,  using  and  enjoy- 
ing the  land  as  his  own,  in  hostility  to  the  true  owner,  for  the  full 
statutory  period,  which  enables  the  occupant  to  acquire  an  abso- 
lute right  to  the  land  under  these  statutes.4  The  motive  of  the 
occupant  is  not  material,  provided  his  occupancy  is  actual  and 
exclusive,  and  after  the  manner  of  the  owner  of  the  fee.5 

While,  strictly  speaking,  as  held  in  Connecticut  and  some  other 
States,  it  may  not  be  necessary  that  the  entry  or  possession 
should,  in  all  cases,  be  under  a  pretense  or  claim  of  title  by  the 
occupant  in  himself,  yet  it  is  an  indispensable  requisite  that  the 
entry  and  possession,  or  the  possession  where  the  entry  is  not 
wrongful,  should  be  hostile  to  the  true  owner; 6  and  a  person  who 

merits  must  concur,  to  wit,  an  entry  which  is  not  made  under  the  title  of  the 
true  owner,  and  an  actual  ouster  of  the  owner  under  such  entry;  and  he  says, 
"  Every  entry  is  not  a  disseisin,  unless  there  be  likewise  an  ouster  of  the  free- 
hold."    Atkyn  v.  Horde,  2  Cowp.  689. 

1  See  sec.  265,  Landlord  and  Tenant;  sec.  266,  Co-tenants;  Atkyns  v.  Horde, 
2  Cowp.  6 

2  Fishar  v.  Prosser,  1  Cowp.  217. 

'Johnson  v.  Gorham,  38  Conn.  521;   Patterson  v.  Reigle,  4  Penn.  St.  201. 

*  I  rem  h  v.  Pearce,  8  Conn.  439.     See  Johnson  v.  Gorham,  38  id.  513. 
I  rem  h  v.  Pean  e,  tupra. 

•  Griswold  v.  Bard,  4  fohns.  CNT.  Y.)  320.  A  naked  possession  without  any 
claim  'if  till'   is  not  sufficient,  Brandl  v   Ogden,  1  Johns.  (N.  Y.)  156;   Humbert 


§  256.J  ADVERSE    POSSESSION   AND    REAL   ACTIONS.  575 

merely  claims  the  improvements  upon  land  cannot  acquire  a  title- 
by  any  length  of  possession. '     In  some  of  the  States  it  is  expressly 

v.  Trinity  Church,  supra;  nor  is  an  entry  by  the  permission  of  the  owner,  with 
the  expectation  that  the  land  will  be  conveyed  to  him  as  a  gift,  Howard  v.  How- 
ard, 17  Barb.  (N.  Y.)  663;  Pease  v.  Lawson,  33  Mo.  35.  It  is  not  indispensable 
that  the  entry  should  be  adverse  in  its  inception.  Jackson  v.  Brink,  5  Cow.  (N. 
Y.)  483.  If  an  adverse  claim  is  subsequently  set  up,  either  by  taking  a  deed  of 
the  land  or  otherwise  by  unequivocal  acts  of  ownership,  it  is  enough.  Jackson 
v.  Smith,  13  Johns.  (N.  Y.)  406;  Jackson  v.  Frost,  5  Cow.  346.  There  must  be 
an  assertion  of  a  right  to  the  exclusion  of  every  other  person.  Sherry  v.  Freck- 
ing  4,  Duer  (N.  Y.)  452.  And  it  must  be  under  a  claim  of  the  entire  title,  and 
which  excludes  every  presumption  of  title  in  another.  Hoyt  v.  Dillon,  19  Barb. 
(N.  Y.)  644.  See  Jackson  v.  Sharp,  9  Johns.  (N.  Y.)  163.  In  Pepper  v.  O'Dovvd, 
39  Wis.  538,  it  was  held  that  to  make  the  actual  adverse  possession  of  a  part  of 
a  tract  of  farming  land,  which  was  once  possessed  and  used  as  several  farms 
bv  several  owners,  constructive  adverse  possession  of  the  whole  tract,  it  must 
be  shown  that  the  whole  tract  is  included  in  some  of  the  claimant's  title  papers, 
and  that  the  several  farms  have  been  joined  together  in  one  known  farm  efore 
the  entry  under  which  the  claim  exists  was  made.  An  adverse  possession 
must  not  be  a  mere  trespass.  It  must  be  visible  and  notorious,  and  exclude  the 
exercise  of  ownership  by  the  other  party,  and  must  be  hostile  in  such  sense  as 
to  indicate  intent  to  occupy  exclusively.  Miller  v.  Piatt,  5  Duer  (N  Y.)  272. 
The  person  having  the  legal  title  to  land  has  the  constructive  possession  of  it. 
To  overcome  that  possession,  and  perfect  title  by  limitation,  or  create  the  pre- 
sumption of  a  grant  to  such  land,  there  must  be  an  actual  possession  of  some 
part  of  the  land  in  dispute,  Snoddy  v.  Kreutch,  3  Head  (Tenn.)  301;  Foster 
v.  Grizzle,  1  Coldw.  (Tenn.)  530.  A  mere  adverse  claim  to  the  land  for  the 
period  required  to  form  the  bar  is  not  sufficient.  Smith  z.  Lee,  1  Coldw  (Tenn.) 
549.  To  make  a  possession  adverse,  there  must  be  an  entry  under  a  color  of 
right  claiming  title  hostile  to  the  true  owner  and  the  world,  and  the  entry 
must  be  followed  by  the  possession  and  appropriation  of  the  premises  to  the 
occupant's  use,  done  publicly  and  notoriously.  Dixon  7j.  Clark,  47  Miss.  220. 
The  adverse  character  of  the  possession  must  be  proved  as  a  fact;  it  cannot  be 
assumed  as  a  matter  of  law  from  mere  exclusive  possession,  however  long 
continued.  Russell  v.  Davis,  38  Conn.  562.  And  the  proof  must  be  clear  that 
the  party  held  under  a  claim  of  right,  and  with  intent  to  hold  adversely. 
Grube  v.  Wells,  34  Iowa,  148;  Washburn  ?•.  Cutter,  17  Minn.  361;  Baker  v. 
Swan,, 32  Md.  355.  A  mere  possession  without  claim  of  title  can  afford  no  pre- 
sumption of  right  from  lapse  of  time.  Taggart  v.  Stanbery,  2  McLean  (U.  S.) 
543:  Stillman  v.  White  Rock  Mfg.  Co.,  3  W.  &  M.  (U.  S.)  539;  Peyton  v.  Stith, 
5  Pet.  (U.  S.)  485.  In  Wilkes  v.  Elliot,  5  Cranch,  C.  C.  6rr,  it  was  held  that 
there  must  be  an  entry  under  claim  of  title,  or  a  subsequent  claim  of  hostile 
title  and  possession  under  it.  In  Ewing  v.  Burnett,  n  Pet.  (11.  S.)  41,  it  was 
held  that  an  entry  operates  as  an  ouster,  or  not  according  to  the  intent  with 
which  the  act  was  done. 

1  Davenport  v.  Sebring,  52  Iowa,  364.  Where  one  of  several  heirs  took  exclu- 
sive possession  of  land  belonging  to  a  number  of  heirs,  and  improved  it.  with- 
out interference  from  them,  although   they  lived  in  the  immediate  neighbor- 


576  STATUTES    OF    LIMITATION.  «   HAP.   XX. 

provided  that  where  the  possession  is  not  held  under  any  writing,1 
it  must  be  under  a  claim  of  title,  that  is,  that  the  person  must 
occupy  and  claim  the  premises  as  his  own ;  and  practically  in  all 
the  States  there  must  be  an  entry  or  possession  under  a  claim  of 
title,  or  such  a  user  of  the  premises  as  raises  a  presumption  of 
such  a  claim,  and  in  many  of  the  States  a  claim  of  title,  as  well 
as  exclusive  and  continuous  occupancy,  is  held  to  be  indispensa- 
ble ;2  and  generally  it  may  be  said  that  the  intention  of  the  occu- 
pant is  a  material  element  in  determining  whether  or  not  the 
possession  is  adverse  in  such  a  sense  as  to  operate  as  an  actual 
ouster  of  the  true  owner  and  defeat  his  right  of  entry.3  It  is  well 
settled  that,  where  there  is  no  claim  of  title  in  the  occupant,  his 
possession  cannot  be  adverse  to  the  true  title,  upon  the  principle 
that,  where  a  person  is  in  possession,  making  no  claim  whatever 
to  the  premises,  his  title,  in  presumption  of  law,  is  in  amity  with 
and  subservience  to  the  true  title.4     Indeed,  the  courts  of  Georgia 

hood,  and  no  action  was  brought  by  them  for  more  than  twenty-five  years,  it 
was  held  that  ejectment  would  not  lie;  also  that  the  heir  in  possession  had 
acquired  a  title  to  the  land  by  adverse  possession  for  the  requisise  period,  and 
that  no  claim  of  title  was  necessary  to  perfect  an  adverse  holding.  Campau  v. 
Dubois,  39  Mich.  274. 

1  Mississippi,  New  York,  Florida,  Louisiana,  Colorado,  South  Carolina,  Cali- 
fornia, Wisconsin,  Nevada,  Texas,  Arizona,  Utah,  Dakota,  Idaho,  and  Montana. 

s  Hale  v.  Glidden,  10  N.  H.  397;  Hunter  v.  Chrisman,  6  B.  Mon.  (Ky.)  463; 
Kincheloe  v.  Tracewells,  11  Gratt.  (Va.)  587,  605;  Ewing  v.  Burnet,  11  Pet.  (U. 
S.)  41;  Harvey  v.  Tyler,  2  Wall.  (U.  S.)  328. 

3  Brown  v.  Gay,  3  Me.  126;  Howard  v.  Rudy,  29  Ga.  154;  Brown  v.  Cock- 
erell,  33  Ala.  45.  In  Simmons  v.  Nahant,  3  Allen  (Mass.)  316,  the  court  held 
that,  in  order  to  gain  a  possessory  title  to  land  lying  in  common  and  undivided, 
there  must  be  proof  of  acts  of  ownership  done  with  the  intention  of  asserting 
a  title  thereto. 

4  Harvey  v.  Tyler,  supra;  Kincheloe  v.  Tracewells,  supra;  Jackson  v.  Waters, 
12  Johns.  (N.  Y.)  365;  Jackson  v.  Howe,  14  id.  405;  Johnston  v.  Irwin,  3  S.  & 
R.  (Penn.)  291;  Markley  v.  Amos,  2  Bailey  (S.  C.)  603;  Jackson  v.  Thomas,  16 
Johns.  (N.  Y.)  293.  A  person  under  such  circumstances  is  a  mere  intruder. 
"  Intrusioest  ubi  quis,  cui  nullum  jus  competit  in  re  nee  scintilla  juris,  pos- 

>nem  vacuam  ingreditur,  quae  nee  corpore  nee  animo  possidetur,  sicut 
hereditatum  jacentum."  Bracton,  Book  IV.,  ch.  2,  fol.  160.  In  Book  II.,  ch. 
17,  fol.  39,  possession  is  called  "  nuda,  ubi  quis  nil  juris  habet  in  re,  nee 
in  juris  scintillam,  sed  tantum  nudum  pedum  possessionem."  As  pre- 
viously stated,  such  possession  has  always  been  treated  as  in  subservience  to 
the  true  title.  Jackson  ?>.  Porter,  r  Paine  (U.  S.  C.  C.)  457;  Jackson  v.  Camp, 
1  Cow.  (M.  Y.)  005.  See  Story,  J.:  "  No  ouster  can  be  presumed  in  favor  of 
Qcfa  a  posse!  -ion."      Society  ".   I'awlet,  4  Pet.  (U.  S.)  480. 


-§  256.]  ADVERSE   POSSESSION   AND    REAL   ACTIONS.  577 

have  extended  this  rule  so  far  as  to  hold  that,  where  a  person 
goes  into  possession  under  such  circumstances,  he  holds  as  tenant 
at  will  to  the  true  owner,  and  cannot,  by  secretly  attorning  to 
another,  change  the  character  of  his  possession  so  as  to  make  it 
adverse.1  Although  such  naked  possession  is  treated  as  held  in 
subservience  to  the  legal  title,  yet  it  implies  no  privity  of  contract 
with  the  legal  owner,  or  duty  towards  him  or  the  estate ;  and 
while  his  possession,  unless  its  character  is  changed,  may  not  ripen 
into  an  adverse  title,  upon  the  principle  that,  unless  adverse 
in  its  inception,  it  will  be  presumed  to  continue  as  it  began, 
yet  this  does  not  preclude  the  occupant  from  setting  up  an 
adverse  claim  at  any  time  he  chooses,  either  by  taking  a  con- 
veyance under  a  tax  title  or  any  conveyance,  or  by  any  act 
which  changes  the  character  of  his  occupancy  from  amicable 
to  adverse.2 

It  is  the  intention  to  claim  title  which  makes  the  possession 
adverse;  but  this  intention  must  be  evinced  and  effectuated  by 
the  manner  of  occupancy ; 3  and  neither  a  mere  claim  of  title  with- 
out occupancy,4  nor  a  mere  occupancy  without  an  intent  to  claim 
title,  are  sufficient.5  "It  is  not  the  possession  alone,"  says 
Thompson,  J.,6  "  but  that  it  is  accompanied  with  the  claim  of  the 
fee,  which,  by  construction  of  law,  is  deemed  prima  facie  evi- 
dence of  such  an  estate."  The  intention  need  not  be  expressed, 
but  may  be  inferred  from  the  manner  of  occupancy;7  and  in  one 
case,  where  the  possession  was  shown  to  have  been  in  fact  adverse, 
it  was  held  that  the  statute  barred  an  entry  after  the  lapse  of  the 
requisite   period,    although  the   occupant   practiced    deceit,   and 

1  Gay  v.  Mitchell,  35  Ga.  139.  See  Link  v,  Doerfer,  42  Wis.  391,  where  it  is 
intimated  that  a  person  so  possessing  land  may  subject  the  tenant  to  some 
form  of  action  for  the  profits.     But  this  is  mere  obiter. 

'Blackwood  v.  Van  Vleit,  30  Mich.  118;  Bowman  w.  Cockrill,  6  Kan.  311; 
Blakeley  v.  Bestor,  13  111.  708;  Moss  v.  Shear,  25  Cal.  38;  Link  v.  Doerfer,  42 
Wis.  407;   Hamilton  v.  Wright,  30  Iowa,  480;  Stubblefield  v.  Borders,  92  111.  279. 

3  Jackson  v.  Porter,  1  Paine  (U.  S.)457;  Bartholomew  v.  Edwards,  1  Houst. 
(Del.)  17.     In  Campau  v.  Dubois,   39  Mich.  274,  it  was  held  that  no  claim  of 

litle  is  necessary  to  perfect  a  title  by  adverse  holding. 

4  Abell  7/.  Harris,  11  G.  &  J.  (Md.)  637;  Cooper  v.  Smith,  9  S.  &  R.  (Penn.)  26. 

5  Brown  v.  Gay,  3  Me.  126;  Allen  v.  Holton,  20  Pick  (Mass.)  458;  Betls  v. 
Brown,  3  Mo.  App.  20;  McNamara  v.  Seaton,  82  III.  49S;  Skinner  v.  Crawford, 
54  Iowa,  119. 

•Jackson  v.  Porter,  1  Paine  (U.  S.)  457. 
1  Conyers  v.  Kenan,  4  Ga.  30S. 
[stats,  of  lim.  —  37] 


5/8  STATUTES   OF   LIMITATION.  [CHAP.   XX. 

lulled  the  owner  into  the  belief  that  he  did  not  intend  to  claim 
adversely.1  (a) 

SEC.    257.   Entry  or  Possession  without  Color  of  Title.  —  It  is 

well  settled  that,  where  a  person  relies  upon  naked  possession  as 
the  foundation  for  an  adverse  claim,  there  must  be  a  pedis  pos- 
session or  an  actual  occupancy,  and  the  possession  cannot  be 
extended  by  construction  beyond  the  limits  of  his  actual  occupa- 
tion;2 and  it  must  not  only  be  actual,  but  also  visible,  continu- 
ous, notorious,  distinct,  and  hostile,3  and  of  such  a  character  as 

1  Strange  v.  Durham,  1  Brev.  (S.  C.)  83;  and  see  Patterson  v.  Reigle,  4  Penn. 
St.  201.  In  Pennsylvania,  it  is  held  that,  where  an  entry  is  made  without  the 
permission  of  the  owner,  the  possession  is  presumed  to  be  adverse,  until  the 
contrary  is  shown.     Neel  v.  McElhenny,  6g  Penn.  St.  300. 

2  Coburn  v.  Hollis,  3  Met.  (Mass.)  125;  Jackson  v.  Hardenbugrh,  2  Johns. 
(N.  Y.)  234;  Hale  v.  Glidden,  10  N.  H.  397;  Ferguson  v.  Peden,  33  Ark.  150; 
Wilson  v.  McEwan,  7  Oreg.  87;  Schneider  v.  Botsch,  90  111.  577  Peterson  v. 
McCullough,  50  Ind.  35;  Wells  v.  Jackson  Manuf.  Co.,  4S  M.  H.  491.  In  Ala- 
bama, the  title  in  such  cases  is  restricted  to  lands  inclosed  and  under  cultiva- 
tion. Hawkins  v.  Hawkins,  45  Ala.  4S2;  Ege  v.  Medlar,  82  Penn.  St.  86, 
Clarke  v.  Wagner,  74N.  C.  791;  Bristol  v.  Carroll  County,  95  111.  84;  Humphries 
v.  Huffman,  33  Ohio  St.  333;  Foster  v.  Letz,  86  111.  412.  Where  a  person 
acquires  a  title  by  naked  occupancy  upon  a  river,  his  title  cannot  be  extended 
by  construction  to  the  centre  of  the  river.  Riley  v.  Jameson,  3  N.  H.  23; 
Coming  v.  Troy  Iron  Co.,  34  Barb.  (N.  Y.)  529.  But  a  person  may  so  use  the 
river  as  to  acquire  title  to  the  land  lying  under  it.  Wickes  v.  Lake,  25  Wis.  71. 
But  in  Hawkins  v.  Hudson,  45  Ala.  482,  where  a  person  went  into  possession 
of  land  under  a  parol  gift,  and  actually  occupied  only  a  part  of  the  lot,  it  was 
held  that  his  title  could  not  be  extended  beyond  his  actual  occupancy,  as 
against  a  bona  fide  purchaser  from  the  owner  of  the  legal  estate.  A  person 
going  into  possession  without  color  of  title,  but  as  a  mere  intruder,  acquires 
possession  "  inch  by  inch  "  of  the  part  which  he  occupies,  and  he  cannot  extend 
his  title  beyond  his  actual  occupation  for  any  distance.  Prescott  v.  Johnson,  9 
Martin  (La.)  123;  Brooks  v.  Clay,  3  A.  K.  Mar.  (Ky.)  545.  See  Miller  v.  Shaw, 
7  S.  &  R.  (Penn.)  143;  Royer  v.  Benlow,  10  S.  &  R.  (Penn.)  303. 

3  In  Sparrow  v.  Hovey,  44  Mich.  63,  a  refusal  of  the  court  to  charge  that  when 
title  is  claimed  by  an  adverse  possession  it  should  appear  that  the  possession 
had  been  "  actual,  continued,  visible,  notorious,  distinct,  and  hostile,"  but 
merely  charging  the  jury  that  the  possession  "  must  be  actual,  continued,  and 
visible,"  was  held  erroneous,  although  in  fact  the  possession  was  held  under  a 
tax  title  which  rendered  it  necessarily  hostile  to  the  owner  of  the  original  title. 

As  to  mistake  in  boundary  lines,  dale    v.    Liverpool    College,     [1900]     I 

see   6    Harvard     L.    Rev.    385.     When  Ch.  19.     The  mere  user  of  land,  with- 

possession     is     to     be     inferred     from  out  claiming  it,   and   under  the  belief 

equivocal     acts,     the     intention     with  that  the  real  owner  does  own  it,  is  not 

which  ihey  are  done  is  all  important,  adverse.     Pearson  v.  Adams  (Ala.),  29 

See  Leigh  v.  Jack,  5  Ex.  D.  264;  Little-  S.  E.  977. 


§  257-]  ADVERSE    POSSESSION    AND    REAL   ACTIONS.  579 

to  indicate  exclusive  ownership  in  the  occupant.1  No  definite 
rule  as  to  what  constitutes  sufficient  possessory  acts  can  be  given, 
as  the  matter  must  necessarily  depend  largely  upon  the  nature 
and  character  of  the  property,  and  must  be  determined  from  the 
circumstances  of  each  case,  and  is  for  the  jury.  A  substantial 
fence  erected  around  land  is  a  sufficient  evidence  of  disseisin,2 
and  the  limit  and  extent  of  the  occupant's  claims;  but  the  fence 
must  be  substantial,  and  a  brush  fence,3  or  a  fence  made  merely 
by  lapping  trees  one  upon  another,'1  —  although  the  person  claim- 
ing the  land  occasionally  entered  upon  it  and  cut  wood  and 
timber.5  and  sold  a  part  of  the  land,  —have  been  held  not  suffi- 
cient to  constitute  a  disseisin,  although  done  with  the  knowledge 
of  the  owner.6  A  fence  erected  merely  for  convenience  in  work- 
ing a  farm,  and  not  for  the  purpose  of  marking  the  boundaries 
according  to  the  title,  is  of  no  weight  in  determining  acts  of 
possession.7  A  fence  must  not  only  be  substantial,  but  it  must 
also  extend  around  the  whole  lot,  and  one  built  only  on  three 
sides  of  it  has  been  held  insufficient;8  but  the  rule  would  be 
otherwise  where  upon  one  side  there  is  a  natural  substitute  for  a 
fence,  as  a  ledge  of  rocks,9  or  other  natural  obstruction  that 
renders  a  fence  unnecessary,  and  in  connection  with  the  fence 
actually  constructed  forms  a  sufficient  boundary  and  indicia  or 
badge  of  ownership  of  the  lot  claimed.      The  rule  is  that  where 

1  Soule  v.  Barlow,  49  Vt.  329. 

5  Ringold  v.  Cheney,  4  Hall's  L.  J.  (Md.)  128;  Miller  v.  Shaw.  7  S.  &  R. 
(Perm.)  129;  Munshower  v.  Pattan,  10  id.  334;  Hawk  v.  Senseman,  6  id.  21; 
Burns  v.  Swift,  2  id.  436;  Mercer  v.  Watson,  1  Watts  (Penn  )  330;  Smith  v. 
Hosmer,  7  N.  H.  436.  If  a  person  enters  under  a  deed,  and  fences  in  more 
land  than  his  deed  covers,  he  will  hold  the  whole  if  he  keeps  up  the  fence  for 
the  full  statutory  period.     Levettenham  v.  Leary,  iS  Hun  (N.  Y.)  284. 

3  Hale  v.  Glidden,  10  N.  H.  397. 

4Coburn  v.  Hollis,  3  Met.  (Mass.)  125;  Parker  v.  Parker,  1  Allen  (Mass.)  245; 
Slater  v.  Jepherson,  6Cush.  (Mass.)  129;  Jackson  v.  Schoonmaker,  2  Johns.  (N. 
Y.)  230. 

6  Hale  v.  Glidden,  supra;  Slater  v.  Jepherson,  supra. 

6  Slater  v.  Jepherson,  supra;  Paiker  v.  Parker,  supra. 

1  Soule  v.  Barlow,  49  Vt.  329.  In  Allen  v.  Holton,  26  Pick.  (Mass.)  458  it 
was  held  that  the  building  of  a  fence  upon  a  part  of  another's  land,  for  the 
purpose  of  protecting  his  crops,  and  with  no  intention  to  exclude  the  owner 
from  the  lot,  although  the  person  building  it  occasionally  cut  wood  and  brush 
from  the  lot  inclosed,  did   not  constitute  a  disseisin. 

8  Armstrong  v.  Risteau,  5  Md.  256.  But  see  Dennett  v.  Crocker,  8  Me.  239; 
Pope  v.  Hanmer,  74  N.  Y.  240. 

'St.  Louis  v.  Gorman,  29  Mo.  593. 


580  STATUTES   OF   LIMITATION.  [CHAP.   XX. 

an  enclosure  consisting  partly  of  natural  and  partly  of  artificial 
obstructions  is  relied  upon  as  in  itself  establishing  apossessio pedis, 
it  is  for  the  jury,  upon  all  the  proofs,  and  considering  the  quantity, 
locality,  and  character  of  the  land,  to  decide  whether  the  artificial 
barriers  were  sufficient  to  notify  the  public  that  the  land  was 
appropriated,  and  to  impart  to  the  appropriation  the  notoriety 
and  indicia  of  ownership.1 

Where  land  was  enclosed  by  a  river  and  a  fence  and  road,  and 
a  disseisor  occupied  as  near  it  as  was  convenient,  it  was  held  that 
this  might  be,  if  so  intended  by  the  occupant,  a  possession  of 
the  whole  lot,  although  there  was  a  narrow  strip  uncultivated.2 
Where  the  party  relies  upon  a  fence  to  establish  his  title  to  land, 
he  cannot  extend  his  possession  beyond  its  limits,3  except  by  an 
actual  occupancy  of  the  land  outside  of  the  limits  of  the  fence 
for   the   full   statutory   period.4     Unless   expressly    made   so    by 

1  Brumagim  v.  Bradshaw,  39  Cal.  24. 

5  Allen  v.  Holton,  20  Pick.  (Mass.)  458.  And  where  land  was  claimed  by- 
actual  possession  and  inclosure  by  a  fence,  and  was  bounded  on  one  side  by  a 
pond  and  on  the  other  by  lands  owned  by  the  claimant,  it  was  held  thai  although 
his  fences  did  not  surround  the  land  in  question  on  all  sides  except  that  next  10 
the  pond,  yet  it  was  proper  to  submit  the  facts  to  the  jury  to  determine  whether 
they  were  erected  for  the  purpose  of  inclosing  the  land  in  controversy,  or  merely 
for  the  protection  of  his  own  land.  Dennett  v.  Crocker,  8  Me.  239.  See  also 
Soule  v.  Barlow,  supra. 

'■'■  Ringold  v.  Cheney,  supra;  Hall  v.  Gittings,  2  H.  &  J.  (Md.)  380;  Goewey  v. 
Urig,  8  111.  238. 

4  In  Hull  v.  Gittings,  supra,  where  a  claimant  to  land,  who  had  inclosed  a 
hundred  acres  of  land  and  cultivated  it  for  fifteen  years,  subsequently  inclosed 
fifty  acres  additional,  and  occupied  it  in  connection  with  the  other  for  six  years, 
it  was  held  that  he  only  had  title  to  the  hundred  acres.  Adverse  possession  is 
made  out  by  the  coexistence  of  two  distinct  ingredients:  the  first,  such  a  title 
as  will  afford  color;  and,  second,  such  possession  under  it  as  will  be  adverse 
to  the  right  of  the  true  owner;  and  whether  these  two  essentials  exist  is  in  all 
cases,  a  question  of  law.  to  be  determined  by  the  court,  though  the  facts  upon 
which  they  are  founded  are  for  the  finding  of  the  jury.  Baker  v.  Swan,  32  Md. 
355.  Wickes  v.  Lake,  25  Wis.  71.  To  defeat  an  action  of  ejectment,  the  pos- 
session must  have  been  an  open,  notorious,  and  continuous  occupancy  of  the 
land,  or  some  part  thereof,  under  color  of  title  to  the  whole,  and  must  be  taken 
iod  fiiili  under  a  claim  adverse  to  plaini  iff  and  those  from  whom  he  derives 
Turner  v.  Hall,  60  Mo.  271;  and  must  be  such  as  operates  as  a  notice  of 
the  claim  of  title  to  all  parties.  Wilder?'.  Clough,  55  N.  II.  359.  Under  this 
rule,  to  prevent  the  establishment  of  a  right  to  maintain  across  one  lot  of  land 
a  drain  leading  from  another  lot,  bv  adverse  use  continued  for  twenty  years, 
the  testimony  of  a  person  who  within  that  time  owned  the  first  lot  is  admis- 
sible; and   that  during  the  time  he  owned  it,  and  with  ample  opportunities,  if 


§  257-]  ADVERSE   POSSESSION   AND    REAL   ACTIONS.  58 1 

statute,  the  mere  circumstance  that  a  person  erected  a  fence 
around  a  lot,  however  substantial,  is  not  of  itself  sufficient  evi- 
dence of  exclusive  occupation ;  it  must  also  be  shown  that  the 
person  claiming  not  only  held  the  land  adversely,  but  also  that 
he  had  the  exclusive  occupation  of  the  land  surrounded  by  the 
fence  for  the  entire  statutory  period.1^) 

visible,  he  never  knew  of  the  existence  of  the  drain.  Hannefin  v.  Blake,  102 
Mass.  297.  A  claim  of  title  based  on  continuous  possession  is  not  impaired  by 
occasional  occupancy  by  persons  not  distinctly  shown  to  be  in  under  the  claimant, 
if  the  same  is  not  positively  proved  to  have  been  adverse,  nor  the  claim  al  any 
time  to  have  been  abandoned.  Rayner  v.  Lee,  20  Mich.  3S4.  Compare  Whal- 
ley  v.  Small,  29  Iowa  2SS.  The  building  of  a  shed,  quarrying  rock,  erecting  a 
limekiln,  and  cutting  wood,  to  burn  it  for  the  purpose  of  making  lime  on  the 
land  in  dispute,  continued  uninterruptedly  for  more  than  seven  years,  con- 
stitute such  a  possession  as  will  give  a  good  title  to  the  person  claiming 
adversely  under  it.  Moore  v.  Thompson,  69  N.  C.  120.  It  is  for  the  jury  to 
say  whether  one  who  does  acts  of  ownership  upon  wild  land,  and  afterwards 
buys  it,  was  in  possession  before  his  conveyance,  and  under  the  grantor  or 
adverse  to  him,  possession  at  that  time  under  color  of  the  grantor's  title  being 
necessary  to  support  a  plea  of  the  statute,  and  the  grantor  never  having  been 
personally  in  possession,  the  land  being  wild,  and  his  claim  a  tax  title.  Wig- 
gins v.  Holley,  11  Ind.  2.  An  exclusive  possession  and  occupancy  for  len 
years,  under  a  claim  of  absolute  title,  and  where  there  is  no  adverse  showing, 
is  sufficient  evidence  for  a  iury  to  infer  a  title  in  fee  simple  in  the  occupant,  on 
an  appeal  from  the  appraisement  and  assessment  of  county  commissioners,  of 
land  taken  for  a  railroad.  Gulf  R.  R.  Co.  v.  Owen,  8  Kan.  409.  The  acceptance 
of  a  lease  from  the  owner  of  the  title  interrupts  the  running  of  limitation. 
Under  a  lease,  during  the  term  there  can  be  no  adverse  possession  by  the  ten- 
ant, unless  by  some  act  creating  an  adverse  possession  if  done  by  a  tenant  who 
entered  under  a  lease.  Abbey  Homestead  Assoc,  v.  Willard,  48  Cal.  614. 
'See  Russell  v.  Davis,  38  Conn.  562;  Walsh  v.  Hill,  41  Cal.  571. 

(a)  The  evidence  necessary  to  prove  it  marks  the  bounds  of  the  adverse  oc- 
adverse  possession  varies  with  the  cupancy.  Trustees  v.  Kirk,  84  N.  Y. 
character  of  the  land.  Bowen  v.  215;  Illinois  Steel  Co.  z-.  Bilot  (Wis.)  85 
Guild,  130  Mass.  121,  infra,  §  267.  A  N.  W.  402,  406;  Polk  v.  Beaumont 
title  to  land  by  disseisin  and  adverse  Pasture  Co.  (Tex.  Civ.  App,)  64  S.  W. 
possession  up  to  the  line  of  an  ancient  58.  Thus,  the  claim  need  not  be  evi- 
dence is  evidence  of  title  to  that  line,  denced  by  fencing  on  everv  side;  a 
Holloran  v.  Holloran,  149  Mass.  298;  natural  boundary,  like  a  stream,  will 
Houghton  v.  Wilhelmy,  157  Mass.  521;  suffice  on  one  side,  if  the  other  sides 
Beckman  v.  Davidson,  162  Mass.  347;  are  inclosed.  Sanders  v.  Riedinger, 
Northern  Counties  Inv.  Trust  v.  Enyard  51  N.  Y.  S.  937,  5S  N.  E.  1092.  But 
(Wash.)  64  Pac.  516;  Pittsburg,  etc.,  R.  the  building  of  a  temporary  or  in- 
Co.  v.  Stickley,  (2d]  58  N.  J.  192;  Bell  adequate  fence,  not  fitted  or  intended 
■v.  Whitehead  (Tenn.  Ch.  App.)  62  S.  W.  to  inclose  the  land  in  dispute,  so  as  to 
213;  Daughtrey  v.  New  York  &  T.  exclude  its  free,  unlimited  use  by  the 
Land  Co.  (Tex.  Civ.  App.)  61  S.  W.  947.  owner  or  others,  nor  to  utilize  the  land 
See  McAvoy  v.  Cassidy,  29  N.  Y.  S.  within  it  for  any  practical  purpose,  is 
321.  No  particular  kind  of  inclosure  not  such  an  "  inclosure  "  as  the  law 
is  requisite;  the  boundaries  may  be  contemplates.  Helton  v.  Scrubbe  (Ky.) 
artificial  in  part  and  natural  in  part,  if  62  S.  W.  12. 
the  circumstances  clearly  indicate  that 


582  STATUTES   OF   LIMITATION.  [CHAP.  XX. 

SEC.  258.  Occupancy  where  Premises  are  not  enclosed.  —  As 
previously  stated,  the  question  whether  an  alleged  possession  is 
marked  by  the  characteristics  requisite  to  make  it  adverse,  and 
the  foundation  for  a  title  by  occupancy,  is  not  wholly  a  question 
of  law,  and  is  a  question  for  the  jury,  under  proper  instructions 
from   the  court.1     The  question   as  to  what  constitutes  adverse 

1  Webb  v.  Richardson,  42  Vt.  465.  Lord  Mansfield,  in  Taylor  v.  Horde,  1 
Barr.  60,  said  that  "  disseisin  is  a  fact  to  be  found  by  the  jury."  This  rule  has 
been  adopted  in  our  courts;  and  it  is  invariaoly  held  that  the  question  as  to 
whether  an  occupancy  was  with  an  adverse  intent  must  be  found  by  the  jury. 
Poignard  v.  Smith,  6  Pick.  (Mass.)  172;  Hale  v.  Dewey,  10  Vt.  593;  Jackson  v. 
Joy,  9  Johns.  (N.  Y.)  102;  Bradstreet  v.  Hunlington,  5  Pet.  (U.  S.)  402;  Kinsell 
v.  Daggett,  11  Me.  309;  Jackson  v.  Stephens,  13  Johns.  (N.  Y.)  496;  Coburn  v. 
Hollis,  3  Met.  (Mass.)  125;  Gayetty  v.  Bethune,  14  Mass.  49;  Hopkins  v. 
Robinson,  3  Watts  (Penn.)  205;  Brandt  v.  Ogden,  1  Johns.  (N.  Y.)  156;  Jackson 
v.  Sharp,  9  id.  163;  Jackson  v.  Wheat,  18  id.  40;  Jackson  v.  Waters,  12  id.  365; 
Jackson  v.  Ellis,  13  id.  11S;  Smith  v.  Burtis,  9  id.  174;  Jackson  v.  Newton.  18 
id.  355;  Jackson  v.  Thomas,  16  id.  293;  Jones  v.  Porter,  3  P.  &  W.  (Penn.)  132; 
M'Clung  v.  Ross,  5  Wheat.  (U.  S.)  124;  Her  v.  Routh,  3  How.  (Miss.)  276; 
Cummings  v.  Wyman,  10  Mass.  464;  Wallace  v.  Duffield,  2  S.  &  R.  (Penn.) 
527;  Schwartz  v.  Kuhn,  10  Me.  274;  Atherton  v.  Johnson,  1  N.  H.  34;  Mun- 
shower  v.  Patton,  10  S.  &  R.  (Penn.)  334;  Overfield  71.  Christie,  7  id.  172;  Boiling 
v.  Petersburg,  3  Rand.  (Va.)  563;  Malson  v.  Frye,  1  Watts  (Penn.)  433;  Bell  v. 
Hartley,  4  W.  «  S,  (Penn.)  32;  McNair  v.  Hunt,  5  Mo.  300;  Rogers  v.  Madden, 
2  Bailey  (S.  C.)  321;  Mill  Dam  Corp.  v.  Bullfinch,  6  Mass.  229;  Bracken  v. 
Martin,  3  Yerg.  (Tenn.)  55;  Warren  v.  Childs.  ir  Mass.  222;  Read  v.  Good- 
year, 17  S.  &  R.  (Penn.)  350;  Pray  v.  Pierce,  7  Mass.  383;  Stevens  v.  Dewing,  2 
Aik.  (Vt.)  112.  The  proof  to  establish  adverse  possession  must  be  clear  and 
positive,  and  not  left  to  inference.  Weaver  v.  Wilson,  48  111.  125;  Jackson  v. 
Berner,  id.  203.  But  when  once  established,  it  is  presumed  to  continue,  in  the 
absence  of  proof  of  abandonment,  or  of  possession  by  another  under  claim  of 
title.  Marston  v.  Rowe,  43  Ala.  271.  Upon  a  trial  involving  such  a  title,  the 
claimant  may  introduce  the  record  of  proceedings  and  judgment  in  an  action  of 
trespass  previously  brought  by  him  against  a  third  person  in  respect  of  the 
same  premises.  Such  record  is  not  evidence  of  his  title,  but  is  evidence  that 
his  possession  was  under  claim  of  title,  which  is  material.  Hollister  v.  Young, 
42  Vt.  403.  Where  a  claimant  relies  upon  his  possession  to  defeat  the  lien  of  a 
judgment,  he  must  prove  actual  possession,  and  it  is  not  sufficient  to  prove  that 
he  h  id  such  possession  as  a  deed  gave,  without  proving  by  the  deed  itself  or 
otherwise,  the  character  and  extent  of  the  possession  which  the  deed  gave,  or 
what  occupation  was  had  under  the  deed.  Eagle  &  M.  Co.  v.  Bank  of  Bruns- 
wick, 55  Ga.  44.  An  actual  possession  of  some  part  of  the  premises  must  be 
shown;  and  if  an  easement  is  claimed  by  prescription,  the  use  of  the  right  is 
the  only  evidence  of  the  extent  to  which  it  was  acquired.  Peterson  v.  McCul- 
lougb,  50  Ind.  35.  And  where,  while  the  right  was  being  exercised,  and  before 
the  statutory  period  had  elapsed,  the  owner  asserts  his  rights  by  an  action  for 
the  injurv  resulting  from  such  use,  it  cannot  ripen  into  a  right.  Cobb  v. 
Smith.  38  Wis.  2t.     But  mere  verbal  objections  to,  or  denial  of,  the  right  of  user 


§  258.]  ADVERSE    POSSESSION   AND    REAL   ACTIONS.  583 

possession,  as  well  as  what  evidence  is  necessary  to  establish  it, 
is  for  the  court;  but  the  question  as  to  whether  the  possession  in 
a  given  case  is  adverse,  or  under  the  owner's  title,  is  for  the  jury, 
and  the  person  setting  up  the  claim  takes  the  burden  of  establish- 
ing all  the  requisites  to  make  his  title  by  occupancy  complete.1 
But  the  court  may  decline  to  submit  the  question  of  adverse  pos- 
session to  the  jury,  where,  from  the  undisputed  facts,  as  a  matter 
of  law,  no  sucn  possession  exists.2  The  character  of  the  posses- 
sion requisite  to  establish  a  title  by  adverse  possession  has  already 
been  adverted  to,  and  from  what  has  been  said  it  will  be  readily 
understood  that  the  possession  must  be  of  a  different  character 
from  that  which  marks  the  conduct  of  a  mere  trespasser,  —  it 
must  be  so  open,  notorious,  and  important  as  to  operate  as  a 
notice  to  all  parties  that  it  is  under  a  claim  of  right;  that  the 
right  of  the  true  owner  is  invaded  and  denied  with  an  intention 
on  the  part  of  the  occupant  to  assert  a  claim  of  title  adverse  to 

is  not  such  an  interruption  as  will  prevent  an  acquisition  of  the  right  by  pre- 
scription. Kimball  v.  Ladd,  42  Vt.  747.  The  occasional  cutting  of  timber  and 
boiling  of  sugar  on  ihe  land  of  another,  by  the  occupier  of  an  adjoining  tract, 
and  the  extension  of  his  lines  so  as  to  include  a  small  portion  of  the  meadow- 
land,  is  not  such  a  possession  as  will  give  title  under  the  statute  of  limitations. 
In  such  cases  the  statute  only  extends  to  the  ground  actually  included  in  the 
interference.  Washabaugh  v.  Entriken,  36  Penn.  St.  513;  Holez/.  Ritlenhouse, 
23  Penn.  St.  490.  Evidence  of  occupation  of  wild,  uninclosed  land,  by  cutting 
firewood  and  bushes,  and  trimming  the  trees  thereon,  and,  in  one  instance, 
within  twenty  years,  by  cutting  off  the  entire  growth  of  wood  upon  the  land, 
and  leaving  it  10  grown  ovet  again,  is  held  insufficient  in  Massachusetts  to 
establish  a  title  by  possession,  although  such  acts  are  within  the  knowledge  of 
^he  owner.  Parker  v.  Parker,  1  Allen  (Mass.)  245.  Occupancy  through  a  ten- 
ant is  sufficient.  Smith  v.  Jackson,  76  111.  254.  Fencing  in  a  small  portion  of 
the  highway,  not  sufficient  to  seriously  obstruct  public  travel,  although  done 
by  an  adjoining  land-owner  under  claim  of  title,  does  not  constitute  an  adverse 
possession  which  can  ripen  into  title.  Brooks  v.  Riding,  46  Ind.  15.  Evidence 
that  a  house  and  granary  were  built  upon  the  forty  acres  in  controversy,  and 
that  one  half  of  the  tract  was  cultivated  and  inclosed  —  held,  to  warrant  a  find 
ing  that  the  occupant  was  in  possession  of  the  whole  forty.  Teabout  v.  Daniels, 
38  Iowa,  158.  It  is  not  necessary  that  the  adverse  character  of  the  possession 
should  be  actually  brought  home  to  the  knowledge  of  the  plaintiff  by  affirma- 
tive proof,  if  it  was  adverse  to  all  others,  open,  notorious,  and  held  under  claim 
of  title.     Scruggs  v.  Scruggs,  43  Mo.  142. 

1  Herbert  v.  Hanrick,  16  Ala.  581;  Rung  z.  Schoneberger,  2  Watts  (Penn.)  23; 
Jones  v.  Porter,  2  P.  &  W.  (Penn.)  132;  Gill  ».  Fauntleroy,  8  B.  Mon.  (Ky.) 
177;   Baker  v.  Swan,  32  Md.  355;  Washburn  v.  Cutter,  17  Minn.  361. 

5  Argotsinger  v.  Vines,  82  N.  Y.  308;  Bowie  v.  Brahe,  3  Duer  (N.  Y.  35; 
Nearhoff  v.  Addleman,  31  Penn.  St.  279. 


584  STATUTES   OF   LIMITATION.  [CHAP.   XX. 

him ; *  that  is,  a  person  must  possess,  use,  and  occupy  the  land  as 
owner,  and  as  an  owner  would  do ;  and  an  occasional  exercise  of 
dominion  by  broken  and  unconnected  acts  of  ownership  over 
lands  which  may  be  made  productive  is  in  no  respect  calculated 
to  assert  to  the  world  a  claim  of  right,  but,  says  Taylor,  C.  J.,2 
"such  conduct  bespeaks  the  fitful  invasions  of  a  conscious  tres- 
passer rather  than  the  confident  claims  of  a  rightful  owner." 
There  can  be  no  hardship  in  limiting  the  claims  of  a  wrong-doer 
to  his  actual  occupancy,  or  in  requiring  him  to  occupy  in  such  a 
decisive  manner  as  to  indicate  his  claim  of  ownership;  and  the 
distinction  between  the  claim  of  a  person  under  naked  possession 
and  one  who  claims  under  color  of  title,  both  as  to  the  extent  of 
his  claim  and  the  kind  or  quality  of  possession  requisite  to  estab- 
lish it,  must  not  be  lost  sight  of.  (a) 

Under  the  rule  as  above  stated,  an  adverse  entry  upon  land, 
and   digging  a  canal  and    felling  trees,3  or  turning  cattle   upon 

1  Beatty  v.  Mason,  30  Md.  409;  Carroll  v.  Gillion,  33  Ga.  539;  Thomas  v. 
Babb,  45  Mo.  384;  Soule  v.  Barlow,  49  Vt.  329;  Paine  v.  Hulchins,  49  id.  314. 

'Jones  v.  Ridley,  2  N.  C.  400. 

3  McCarty  v.  Foucher,  12  Martin  (La.)  4,  114;  Prevosl  v.  Johnson,  9  id. 
123. 

(a)  In  North  Carolina  an  actual,  depends  upon  the  nature  and  location 
open  adverse  possession,  even  of  a  of  the  property  and  all  the  circum- 
small  part  of  a  large  tract  of  land,  will  stances  of  the  particular  case.  Ozark 
mature  title  to  all  the  tract  embraced  Plateau  Land  Co.  v.  Hays,  105  Mo. 
within  the  boundaries  of  the  adverse  143,  152;  Illinois  Steel  Co.  v.  Bilot 
holder's  claim,  but  possession  of  one  (Wis.)  85  N.  W.  402.  The  rule  ap- 
tract  cannot  give  constructive  posses-  pears  to  be  now  settled  that,  after  an 
sion  of  an  adjoining  tract  with  the  dis-  entry  on  land  under  color  of  title  by 
tinct  boundaries.  Scaife  v.  Western  deed,  the  possession  is  deemed  to  ex- 
North  CarolinaLandCo.,  go  Fed.  Rep.  tend  to  the  bounds  of  the  deed. 
238;  Basnight  v.  Meekins,  121  N.  C.  although  the  actual  settlement  and  im- 
23;  Allen  v.  Boggess  (Texas)  58  S.  W.  provements  are  on  a  small  parcel  only 
833.  In  Missouri  and  most  of  the  of  the  land;  and,  as  to  the  owner  of 
States,  actual  possession,  in  the  ab-  the  better  legal  title  who  occupies  only 
sence  of  color  of  title,  only  extends  to  in  part,  another  claimant's  junior  paper 
the  part  which  has  been  inclosed,  title  has  no  effect  to  extend  the  latter's 
Carter  v.  Hornback,  139  Mo.  238.  245;  right  beyond  the  bounds  of  his  actual 
Boynton  v.  Hodgdon,  59  N.  H.  247;  possession  under  that  junior  title. 
P  nn.  H.  Co.  v.  Breckenridge,  60  N.  Hunnicutt  v.  Peyton,  102  U.  S.  333; 
I.  I.  583;  Fullam  v.  Foster,  68  Vt.  590;  Smith  v.  Gale,  144  U.  S.  509,  526;  Ozark 
Norrisz/.  lie.  152  111.  190;  Ely&.Brown,  Plateau  Land  Co.  7-.  Hays,  105  Mo. 
183  III.  575,  596;  Wilson  v.  Johnson,  T43,  151;  Sholl  ?.  German  Coal  Co., 
1  j-  [rid,  4  ;  Barber  v.  Robinson,  78  13}  111.  21,  33;  Johns:'.  McKibben,  156 
Minn.  [93;  N'icklace  v.  Dickerson,  65  111.  71.  And  clearly  there  can  be  no 
Ark.  422;  Brown  J".  Walkins,  98  Tenn.  constructive  possession  of  land  which 
i  1  Parkersburg  Ind.  Co.  v.  Schultz,  is  in  the  actual  and  hostile  possession 
4  1  W,  Va.  470;  Sulphur  Mines  Co.  v.  of  another.  New  York  Cent.  R  Co.  v. 
Thompson,  93  Va.  293.  As  used  in  Brennan,  48  N.  Y.  S.  675,  678,  57  N.  E. 
thi     1  mnection,  "  actual  "  possession  1119. 


§  258.]  ADVERSE    POSSESSION   AND    REAL   ACTIONS.  585 

unenclosed  land  to  pasture,1  paying  taxes  upon  it  (a)  and  survey- 
ing it,-  or  surveying  and  marking  the  lines  around  it,  and  the 
occasional  cutting  of  grass3  or  wood  and  timber  for  use  and  sale,4 
a  survey  which  is  not  accompanied  by  any  other  act  of  user  or 
occupation, — is  not  sufficient  to  establish  an  ouster,  or  prove 
that  the  party  went  upon  the  land  to  claim  title;5  nor  does  an 
entry  upon  lands,  cutting  wood  and  splitting  rails,6  or  occasional 
entries  at  long  intervals,  at  one  time  to  cut  timber  and  at  another 
to  make  bricks,7  tend  to  establish  a  title  to  land  by  adverse  occu- 
pancy. Indeed,  in  Massachusetts8  it  is  held  that  there  can  be 
no  adverse  claim  to  wild  or  wood  land  by  a  naked  entry,  without 
an  actual  enclosure  built  by  the  person  claiming  title  or  those 
under  whom  he  claims;  and  if  the  entry  is  under  color  of  title, 

1  Andrews  v.  Mulford,  1  Havvy.  (N.  C.)  311.  In  Sepulveda  %,.  Sepulveda,  39 
Cal.  13,  such  a  use  of  land  was  held  nol.  such  as  would  enable  the  owner  to 
maintain  an  action,  consequently  could  not  be  construed  into  a  disseisin. 

s  Paine  v.  Hutching,  49  Vt.  314;   Miller  v.  Long  Island  R.  R.  Co.,  71  N.  Y.  380. 

3  Kennebeck  Purchase  v.  Springer,  4  Mass.  416.  See  Miller  v.  Long  Island  R. 
Co.,  71  N.  Y.  380,  where  it  was  held  that  an  occasional  entry  upon  woodland 
was  not  sufficient  to  maintain  an  action  for  an  injuiy  to  the  freehold. 

4  Slater  v.  Jepherson,  6  Cush.  (Mass.)  129;  Parker  v.  Parker,  1  Allen  (Mass.) 
245;   Hale  v.  Glidden,  10  N.  H.  397;   Washburn  v.  Cutter,  17  Minn.  361. 

5  Beatty  v.  Mason,  30  Md.  409. 

6  Carrol  v.  Gillion,  33  Ga.  539. 
'Williams  v.  Wallace,  78  N.  C.  354. 

8  Morrison  v.  Chapin,  97  Mass.  72;  Morris  v.  Callanan,  105  id.  129. 

(a)  The  fact  that  taxes  on  the  land  Dolan,  172  Mass.  395;  Lewis  v.  Pleas- 
have  been  uninterruptedly  paid  by  the  ants,  143  III.  271;  Johns  v.  McKibben, 
occupant  or  his  ancestors  for  more  156  111.  71;  Osburn  v.  Searles,  id.  88; 
than  twenty  years  has  been  considered  Anderson  v.  Canter  (10  Kan.  App.)  63 
strong  evidence  of  a  claim  of  right  to  Pac.  285;  Fuller  v.  Jackson  (Ky.)62S. 
all  the  property  taxed.  Fletcher  v.  W.  274:  Wood  v.  Chapman,  24  Col.  134. 
Fuller.  120  U.  S.  534,  552;  Holtzman  v.  In  California  and  Texas  the  payment 
Douglas,  i63  U.  S.  278,  284;  St.  Louis  of  taxes  is  made  an  element  of  adverse 
Public  Schools  v.  Risley,  40  Mo.  356.  possession  by  statute.  See  Lucas  v. 
On  the  other  hand,  if  ihe  adverse  Provines,  130  Cal.  270;  Standard 
holder  has  not  paid  the  taxes,  this  is  Quicksilver  Co.  v.  Habishaw  (Cal.)  64 
evidence  that  his  possession  is  not  Pac.  113;  Gillum  v.  Fuqua  (Tex.  Civ. 
under  a  claim  of  title.  Todd  v.  Weed  App  )  61  S.  W.  938.  In  New  York  the 
(Minn.)  86  N.  W.  756.  Such  payment  payment  of  taxes  is  not  evidence  of 
of  taxes  does  not,  apart  from  statute,  possession,  actual  or  constructive;  and 
constitute  possession  though  accom-  in  a  suit  against  a  city  to  determine 
panied  by  pasturing  the  land;  it  is  title,  its  assessment  and  levy  of  taxes 
merely  evidence  of  a  claim  of  owner-  on  the  land  are  not  admissible  01  the 
ship.  Carter  v.  Hornbick,  139  Mo.  238;  issue  of  adverse  user.  Archibald  v. 
McVev  v.  Carr,  159  Mo  648,  653;  Nye  New  York  Cent.  R.  Co.,  157  N.  Y.  574. 
■v.  Alfter,  127  Mo.  529;  Milieu  v.  Mul-  583;  Cons.  Ice  Co.  v.  New  York,  166 
Ian  (Me.)  49  Atl.  871;  Whitman  v.  N.  Y.  92. 
Shaw,     166     Mass.    451;     Hairison    v. 


586  STATUTES   OF    LIMITATION.  [CHAP.   XX. 

the  claimant  must  either  enclose  the  land,  or  in  some  way  mani- 
fest his  exclusive  occupation,  which  must  be  of  such  a  character 
as  to  disseise  the  owner,1  and  whether  or  not  he  has  so  occupied 
is  a  question  of  fact  for  the  jury.3  But  in  that  State  it  has  been 
held  that  a  title  to  fiats  may  be  made  by  an  appropriate  occupa- 
tion, by  entering  upon  and  filling  them  up,  or  by  building  a 
wharf  and  using  the  flats  adjoining  for  laying  vessels,  and  that 
i:i  such  case  the  occupant  will  acquire  an  adverse  title  not  only  to 
the  land  covered  by  the  wharf,  but  also  as  to  so  much  of  the  land 
under  the  water  (as  in  this  case  eighty  feet)  as  was  used  for  the 
purpose  of  laying  vessels.3  But  as  the  use  of  navigable  waters  for 
the  passage  of  vessels  to  and  from  a  wharf  is  a  usage  of  common 
right,  the  title  was  restricted  to  the  portion  of  the  flats  used  for 
laying  the  vessels,  and  did  not  embrace  that  portion  of  them 
lying  beyond  and  between  the  outer  limits  of  the  eighty-feet 
strip  and  that  portion  of  the  shore  where  the  title  of  the  State 
terminated.4  (a)  The  exercise  of  a  common  right,  however  long 
continued,  cannot  operate  a  disseisin.5  (b)     The  fact  that  a  person 

1  Bates  v.  Norcross,  14  Pick.  (Mass.)  224;  Coburn  v.  Hollis,  3  Met.  (Mass.)  125. 

sCummings  v.  Wyman,  10  Mass.  464;  Parker  v.  Locks  and  Canals,  3  Met. 
(Mass.)  91.  The  exercise  of  a  right,  for  however  long  a  time,  under  circum- 
stances which  are  not  inconsistent  with  the  exercise  of  the  same  right  by 
others,  will  not  establish  a  prescriptive  right  to  an  exclusive  use  thereof, 
although  no  other  person  did  in  fact  exercise  the  privilege.  State  v.  Cincinnati 
Gas  Light  Co.,  iS  Ohio  St.  262.  See  Indianapolis,  etc.,  R.  Co.  v.  Ross,  47 
Ind.  25. 

3  Wheeler  v.  Stone,  1  Cush.  (Mass.)  313.  See  also  Nichols  v.  Boston,  98 
Mass.  39. 

4  Wheeler  v.  Stone,  supra.  In  Wilson  v.  McEvvan,  7  Oreg.  87,  ic  was  held 
that  a  person  who  claimed  several  blocks  of  land,  and  occupied  one  adversely, 
could  not  claim  title  to  the  others  simply  because  he  had  paid  the  taxes  and 
warned  oft  trespassers. 

5  Green  v.  Chelsea,  24  Pick.  (Mass.)  71;  Drake  v.  Curtis,  1  Cush.  (Mass.)  395. 
See  Tracy  v.  Norwich,  etc.,  R.  Co.,  39  Conn.  382;  and   East  Hampton  v.  Kirk, 

I  a)  As  to  adverse  possession  of  land  barred      also     as     to    the    accretions, 

under  water,  see  Atty.-Gen.   v.    Ports-  whether   they  be   new  or  old.     Camp- 

mouth,    25    W.    R.    559;    Jones   v.  Wil-  bell   v.    Laclede   Gas  Co.,  84   Mo.  352, 

Hams,  2    M.    &    W.    326;    Illinois   Steel  372.     As  to  prescriptive   rights  in  arti- 

I  0,    v.   Bilol    (Wis.)  85    N.  W.  402;   De  ficial .  water     courses,    see    Gould    on 

Lance y    v.    Hawkins,  49  N.  Y.  S.  469,  Waters  (3d  ed.),  §§  225,   340,  352;  13 

57  N.  E.  [I08;    M'-rrill  v.  Tobin,  30  Fed.  Harv.  Rev.  608. 

I'    p           ;    Ludlow    Manuf.   Co.   v.  In-  (/>)  As  to  adverse  possession  against 

di  in    Orchard    Co.,    177   Mass.   61.     A  the    government    or    the    public,   see 

riparian    proprietor,    being  entitled   to  Gould  on  Waters   (3d    ed.),  £§    22,   37, 

accretions  made  by  the  water,  if  barred,  121;      Schneider     v.     Hutchinson    (35 

or    partially    barred,    by    the    statute  of  Oregon)  76  Am.    St.    Rep.   474,  and  n.; 

limitations    as    to    the    river    bank,    is  Meyer    v.    Graham,    18   L.    R.    A.  146, 


•§  258.]         ADVERSE    POSSESSION   AND    REAL   ACTIONS.  587 

passes  over  flats  with  vessels  and  anchors  them  there,  or  uses  the 
flats  for  the  purposes  of  access  and  egress  from  a  wharf,1  or  sails 
over  them  with  boats  or  vessels  for  a  long  period,  for  the  pur- 
poses of  navigation,2  does  not  amount  to  possessory  acts  sufficient 
to  give  title  under  the  statute ;  nor  does  the  cutting  of  grass  every 
year  upon  flats  partly  covered  with  water,3  or  the  entry  upon  an 
open  beach  for  a  long  period  of  time  and  gathering  and  removing 
the  seaweed,  because  these  acts  are  consistent  with  the  rights  of 
the  rest  of  the  public,  and  afford  no  evidence  of  an  adverse  claim. 
An  entry  upon  land  and  erecting  a  building  or  buildings  thereon 
operates  as  a  disseisin  to  the  extent  of  the  actual  occupancy,  but 
title  to  adjacent  lands  occasionally  used  in  connection  with  the 
buildings  cannot  be  acquired  by  such  use;5  but  if  the  use  of 
adjoining  land  is  of  such  a  character  that  it  can  be  said  to  be 
continuous,  as  where  a  house  was  extended  over  a  part  of  the 
land,  and  the  rest  was  cultivated  as  a  garden  under  a  claim  of  title 
the  use  operates  as  a  disseisin  of  the  whole.6  Of  course,  an  entry 
upon  land,  and  improving  or  cultivating  it,  continued  for  the 
requisite  statutory  period,  even  though  the  person  entering  has 
no  color  of  title,  will  give  title  to  all  the  land  actually  cultivated 

68  N.  Y.  459,  where  the  same  rule  was  adopted  where  the  only  possessory  acts 
were  such  as  existed  as  a  common  right.  Tappan  v.  Burnham,  8  Allen  (Mass.) 
.65,  also  Drake  v.  Curtis,  1  Cush.  (Mass.)  395. 

1  Wheeler  v.  Stone,  supra. 

3  Drake  v.  Curtis,  supra. 

3  Com.  v.  Roxbury,  9  Gray  (Mass.)  451. 

4  Tappan  v.  Burnham,  supra;  East  Hampton  v.  Kirk,  supra. 

5  Poignard  v.  Smith,  8  Pick.  (Mass.)  272. 

6  Hastings  v.  Merriam,  117  Mass.  245. 

and  n.     *'  It  has  sometimes  been  sug-  id.  526,  552."     And  while  it  is  not  nec- 

gested  that  the  comparative  amount  of  essary   for    each    traveller   to   claim   a 

rightful   private   use  (of  a  way)  and  of  righi  of    way  as   one  of   the  public,  yet 

the  public   use   which  is  without  abso-  "  the  fact  must  exist   that    the  way  is 

lute    right   is   an  important  element  in  used  as  a  public  right,  and  it  must  be 

determining  whether  such  public  use  proved    by   some   evidence    which   dis- 

is  under  a  claim   of   right.     No  doubt  tinguishes   the     use   relied   on    from    a 

the  amount   of   such  unauthorized  use  rightful  use  by  those  who  have  a  right 

may  be  considered  as  tending  to  show  to  travel  over  the  private  way,  and  also 

a  use    under   the  belief  that  the  way  is  from  a  use  which  is   merely  casual,  or 

a  public  one;  but  the   final  test  is,  not  incidental,  or  permissible."     Sprow  v. 

whether  it  is  greater  or  less  in  amount  Boston    &   Albany    R.    Co.,    163   Mass. 

than     the     rightful    private    use,     but  330,  3J.O.     See  Franz  v.  Mendonca,  131 

whether  it   is  of  such  a  character  as  to  Cal.  205. 

show  the  assertion  or  assumption  of  a         As  to  limitation  in  matters  of  eminent 

right  so  to  use  the  way,  or  a  use  under  domain,  see   2   Lewis   on  Eminent  Do- 

the  belief   that  such   use  is  a  matter  of  main   (2d  ed.),    ch.  30,  38  Am.  L.  Reg. 

public  right.     See  Weld  v.  Brooks,  152  (N.  S.)  184,  410. 
Mass.  297;  Taft  v.  Commonwealth,  158 


588  STATUTES   OF   LIMITATION.  [CHAP.   XX. 

or  improved,  but  no  more.1  So,  using  land  for  mining  purposes 
or  quarrying  stone,2  and  cutting  wood  for  a  lime-kiln,3  clearing 
and  cultivating  new  fields,  turning  out  old  ones  and  cutting  wood 
promiscuously,  has  been  held  sufficient.4 

SEC.  259.  Entry  and  Possession  with  Color  of  Title.  —  But 
while  a  person  entering  upon  lands  adversely,  without  any  deed 
or  color  of  title,  is  thus  restricted  to  the  land  actually  occupied 
by  him,  and  takes  nothing  beyond  the  limits  of  his  actual  occu- 
pancy, and  is  required  to  occupy  the  land  for  the  purposes  of 
improvement  or  cultivation,  yet  where  a  person  goes  into  posses- 
sion under  color  of  title,  duly  recorded,  in  which  the  boundaries 
of  the  lot  are  defined,  this  operates  as  constructive  notice  to  all 
the  world,  of  his  claim,  and  also  of  its  extent,  so  that  not  only 
does  a  sufficient  occupancy  of  a  part  of  the  lot  carry  with  it,  by 
construction,  the  possession  of  the  entire  premises  described  by 
his  conveyance,  where  the  boundaries  are  well  defined,5  but  also 

1  Miller  v.  Shaw,  7  S.  &  R.  (Perm.)  129;  M'Caffrey  v.  Fisher,  4  W.  &  S. 
(Peon.)  181 ;   Hall  v.  Powel,  4  S.  &  R.  (Penn.)  456. 

*  Bell  v.  Denson,  56  Ala.  444- 

3  Moore  -j.  Thompson,  69  N.  C.  120. 

*  Wallace  v.  Maxwell,  10  Ired.  (N.  C.)  no. 

5  Stevens  v.  Hollister,  18  Vt.  294.;  Bank  v.  Smyers,  2  Strobh.  (S.  C.)  24;  Lenoir 
v.  South,  10  Ired.  (N.  C.)  237;  Johnson  v.  McMillan,  1  Strobh.  (S.  C.)  143;  Jack- 
son v.  Oltz,  8  Wend.  (N.  Y.)  440;  Simpson  v.  Downing,  23  id.  316;  Golson  v. 
Hook,  4  Strobh.  (S.  C.)  23;  Janes  v.  Patterson,  62  Ga.  527;  Coleman  v.  Billings, 
S9  111.  183:  Waggoner  v.  Hastings,  8  Penn.  St.  300;  Ament  v.  Wolf,  1  Grant's 
Cas.  (Penn.)  518;  Jackson  v.  Porter,  1  Paine  (U.  S.  C.  C.)457;  Ware  v.  John- 
son, 55  Mo.  300;  Chapman  v.  Templeton,  53  id.  463;  Wellborn  v.  Anderson,  37 
Miss.  155;  Bynum  v.  Thompson,  3  Ired.  (N.  C.)  57S;  Kile  v.  Tubbs,  23  Cal.  431; 
Webb  v.  Sturtevant,  2  111.  181 ;  Shackleford  v.  Smith,  5  Dana  (Ky.)  232;  Jack- 
son v.  Vermilyea,  6  Cow.  (N.  Y.)  677;  Prevost  v.  Johnson,  9  Marl.  (La.)  123; 
Jackson  v.  Smiih,  13  Johns.  (N.  YO406;  Poignard  v.  Smith,  8  Pick.  (Mass.)  272; 
Waldron  v.  Tutlle,  4  N.  H.  371;  Sparhawk  v.  Bullard,  1  Met.  (Mass.)  95;  Hig- 
bee  v.  Rice,  5  Mass.  344;  Pearsal  v.  Thorp,  1  D.  Chip.  (Vt.)  92;  Read  v.  Eifert, 
1  N.  &  McCord  (S.  C.)  374,  n.;  King  v.  Smith,  1  Rice  (S.  C.)  14;  McEvoy  v. 
Lloyd,  31  Wis.  143;  Ralph  -/.  Bayley,  n  Vt.  521;  Thompson  v.  Cragg,  24  Tex. 
582;  McRae  v.  Williams,  7  Jones  (N.  C.)  L.  430;  Crary  v.  Goodman,  22  N.  Y. 
17-.;  Cline  v.  Catron,  22  Gratt.  (Va.)  378;  Hawkins  v.  Robinson,  3  Watts 
(Penn.)  205;  Bowie  v.  Brahe,  3  Duer  (N.  Y.)  35;  Finnlay  v.  Cook,  54  Barb.  (N. 
Y.)<r.  Downing  v.  Miller,  33  id.  383;  Munro  v.  Merchant,  28  N.  Y.  9;  Hub- 
bard  V.  Austin,  11  Vt.  129;  M'Call  v.  Neely,  3  Watts  (Penn.)  70;  Hollinshead 
V.  N'.iiiinan,  45  Penn.  St.  140;  Alden  v.  Grove,  iS  id.  377;  Fitch  v.  Mann,  8  id. 
I  Medlar,  82  id.  86;  Sholly  v.  Stahl,  2  W.  N.  C.  (Penn.)  418;  Nearhoff 
v.   Addk-man,    31    Penn.  St.   279;   McCall  v.   Coover,  4   W.    &   S.   (Penn.)    151, 


§  259-]  ADVERSE   POSSESSION   AND    REAL   ACTIONS.  589 

dispenses  with  the  rule  as  to  pedis possessio,  and  only  requires 
from  him  such  an  occupancy  as  the  nature  and  character  of  the 
premises  admits  of.1  The  rule  is  well  stated  in  an  Illinois  case,2 
that  a  person  who  enters  into  possession  of  land  under  a  convey- 
ance, although  from  a  person  having  no  title,  is  presumed  to 
enter  according  to  the  description  in  the  deed  ;  and  his  occupancy 
of  a  part,  claiming  the  whole,  is  construed  as  a  possession  of  the 
entire  tract.3     But  in  order  to  entitle  a  party  to  the  benefits  of 

Heiser  v.  Riehle,  7  Watts  (Perm.)  35:  Saxton  v.  Hunt,  20  N.  J.  L.  487;  Bowman 
v.  Bartlett,  3  A.  K.  Mar.  (Ky.)  99;  Cheney  v.  Ringgold,  2  II.  &  J.  (Md.)  87; 
Stanley  v.  Turner,  1  Murph.  (N.  C.)  14;  Crowell  v.  Bebee,  10  Vt.  33;  Chiles  v. 
Conley,  9  Dana  (Ky.)  385;  Alston  v.  Collins,  2  Speers  (S.  C.)450. 

1  Royer  v.  Benlow,  10  S.  Si  R.  (Penn.)  303.  See  Robinson  v.  Swett,  3  Me.  316. 
Whenever  an  instrument  by  apt  words  of  transfer  from  grantor  to  grantee> 
whether  the  grantor  acts  under  the  authority  of  judicial  proceedings  or  other- 
wise, in  form  passes  what  pu'ports  to  be  the  title,  it  gives  to  the  grantee  color 
of  title,  even  should  the  instrument  be  considered  as  invalid.  Hall  v.  Law,  102 
U.  S.  461. 

"Coleman  v.  Billings,  89  111.  1S3;  Fisher  v.  Bennehoff,  121  111.  426.  See 
Austin  v.  Rust,  73  111.  491;  Scott  v.  Delany,  87  111.  146;  Hubbard  v.  Kiddo,  id. 
578;  Cairo,  etc.,  R.  R.  Co.  v.  Woolsey,  85  111.  370.  In  the  main  case  (Fisher  v. 
Bennehoff)  it  was  held  that  testimony  is  admissible  to  show  who  was  in  pos- 
session during  the  period,  or  any  portion  thereof,  when  title  by  possession  was 
being  acquired. 

3  A  deed  without  a  seal  which  purports  to  convey  a  title  is  sufficient  as  color 
of  title.  Kruse  v.  Wilson,  79  111.  233;  Hamilton  v.  Boggess,  63  Mo.  233.  So  is 
a  void  deed.  Mason  v.  Ayers,  73  111.  121.  Executor's  deeds,  valid  or  not,  are 
sufficient  as  color  of  title.  King  v.  Merritt,  67  Mich.  194.  A  deed  by  the 
husband  of  a  life  tenant,  after  her  decease,  may,  under  some  circumstances, 
be  good  as  a  color  of  title.  Forest  v.  Jackson,  56  N.  H.  357.  So  a  bond  for  a 
deed.  Spitter  v.  Scofield,  43  Iowa,  57L  So  a  deed  obtained  from  a  person 
who  ha?  no  title  may  be  good  as  color  of  title.  Russell  v.  Mandell,  73  111.  136; 
McCamy  v.  Higdon,  50  Ga.  629;  Nowlin  v.  Reynolds,  25  Gratt.  (Va.)  r37;  Payne 
v.  Blackshear,  52  Ga.  637;  Fagan  v.  Rosier,  68  111.  84.  It  was  held  in  some 
early  cases  in  New  York,  that  possession  taken  under  a  grant  from  a  foreign 
government  does  not  constitute  a  sufficient  color  of  title.  Jackson  v.  Ingraham, 
4  Johns.  (N.  Y.)  163.  See  also  Jackson  v.  \\  aters,  12  id.  365.  But  in  view  of  the 
general  doctrine  that  every  possession  under  pretense  or  claim  of  right  is  pro- 
tected, without  regard  to  whether  the  title  was  from  a  valid  source,  the  dis- 
tinction made  in  these  early  cases  seems  not  to  be  recognized.  Barney  v.  Sut- 
ton, 2  Watts  (Penn.)  37;  La  Frombois  v.  Jackson,  supra.  See,  as  to  the  effect. 
of  what  may  be  termed  Indian  deeds,  that  is  deeds  from  the  aborigines,  Jack- 
son v.  Porter,  1  Paine  (U.  S.  C.  C.)  457;  Johnson  v.  Mcintosh,  8  Wheat.  (U.  S.) 
571;  Thompson  v.  Gotham,  9  Ohio,  170;  Jackson  71.  Hudson,  3  Johns.  (N.  Y.) 
384.  Continued,  open,  and  exclusive  possession  for  the  statutory  period,  under 
claim  and  color  of  title,  is  sufficient  to  give  a  good  title  thereto,  without  regard 
to  the  regluarity  and  validity  of  the  colorable  title,  or  to  the  defects  or  insuffi- 


590  STATUTES   OF   LIMITATION.  [CHAP.   XX. 

an  extension  of  his  possession  by  construction,  it  is  essential  that 
the  deed  or  writing  should  describe  and  include  the  land  not 
actually  occupied ; J  and  if  the  land  is  not  described  in  the  writing 
in  such  a  manner  that  it  can  be  readily  identified,  the  doctrine 
relative  to  constructive  possession  cannot  apply,  and  the  party 
must  stand  or  fall  by  his  actual  occupancy.2  Indeed,  color  of 
title  has  been  aptly  described  as  any  writing  which  purports  to 
convey  the  title  to  land  by  apt  words  of  transfer,  and  clearly 
defines  the  extent  of  the  claim;3  and  a  party  cannot  claim  lands 
by  constructive  possession  which  are  not  embraced  within  the 
description  of  the  deed  under  which  he  claims;4  but  as  to  lands 
outside  his  boundaries,  but  contiguous  thereto,  he  is  put  to  his 
claim  of  actual  occupancy.6  It  is  not  essential  in  all  cases  that 
the  land  should  be  described  by  metes  and  bounds;  but  it  must 
be  described  in  such  a  manner  that  the  limits  and  extent  of  the 

ciency  of  the  instruments  confirming  it.  Grant  v.  Fowler,  39  N.  H.  101 ;  Farrar 
7'.  Fessenden,  id.  268;  Elliott  v.  Pearce,  20  Ark.  508;  Cofer  v.  Brooks,  id.  542; 
St.  Louis  v.  Gorman,  29  Mo.  593.  And  an  entry  upon  and  continued  occupa- 
tion of  a  portion  of  a  lot,  under  a  deed  descirbing  the  whole  by  metes  and 
bounds,  gives  possession  of  all  the  lands  embraced  in  the  title  under  which  the 
entry  is  made  and  the  occupation  continued.  It  need  not  commence  or  be 
continued  under  valid  and  effectual  deeds.  See  Farrar  v.  Fessenden,  supra. 
Imperfections  and  irregularities  in  any  part  of  the  claim  of  title  from  which 
color  is  derived  do  not  of  themselves  afford  evidence  of  bad  faith.  Dawley 
v.  Van  Court,  21  111.  460;  Edgerton  v.  Bird,  6  Wis.  527.  An  administrator's 
deed  void  as  against  heirs  for  want  of  notice,  they  being  minors,  will  give  color 
of  title,  under  which,  if  the  premises  be  held  adversely  during  the  statute  period 
after  the  heirs  attain  their  majority,  iheir  right  of  action  will  be  barred.  Van- 
cleave  v.  Milliken,  13  Ind.  105.  Bui.  a  deed  which  does  nol  describe  the  land 
is  not  color.  Kilpatrick  v.  Sneros,  23  Tex.  113.  If  a  deed  is  intended  to  con- 
vey all  the  land  which  the  grantor  owned  in  a  certain  tract,  and  the  grantor 
had  marked  a  line  beyond  the  one  conveved  to  as  the  line  of  the  lot  conveyed, 
it  has  been  held  that  the  grantee  might  hold  to  the  line  so  marked.  Mayse  v. 
Lafferty.  r  Head  (Tenn.)  60. 

1  Woods  v.  Banks,  14  N.  H.  rri;  Thompson  v.  Cragg,  24  Tex.  583;  Jackson 
v.  Camp,  1  Cow.  (N.  Y.)  60?. 

5  Jackson  v.  Woodruff,  1  Cow.  (N.  Y.)  276. 

3  Kali  v.  Law,  102  U.  S.  461;  Bank  v.  Smyers,  2  Strobh.  (S.  C.)  24;  Johnson 
v.  McMillan,  r  id,  143;  Lynde  r.  Williams,  68  Mo.  360.  In  the  first  of  these 
cases  cited  in  this  note-,  the  court  also  held  that  il  was  immaterial  whether  the 
grantor  acts  under  judicial  proceedings  or  otherwise,  or  whether  the  title  was 
actually  conveyed  or  not,  provided  the  grantee  went  into  possession  under  the 
dfi-'l  and  a'  1  uj>ifd  f'>r  the  requisite  statutory  period. 

4  Pope  v.  Hanmer,  74  N.  Y.  240. 
'Slaughter  v.  Fowler,  44  Cal.  195. 


§  259-]  ADVERSE    POSSESSION   AND    REAL   ACTIONS.  591 

claim  can  be  readily  ascertained.1  It  is  sufficient  if  the  instru- 
ment relied  on  purports  upon  its  face  to  convey  the  lands  in  ques- 
tion, and  describes  them  with  such  definiteness  that  they  can  be 
easily  identified,2  although  in  fact  it  is  invalid  and  insufficient  to 
pass  the  title,3  or  actually  void,4  or  one  that  is  voidable,  as  a  deed 
from  an  infant,5  or  from  an  officer  who  had  no  authority  in  fact 
to  convey  the  land,6  or  although  such  authority,  if  he  had  any, 
is  not  shown,7  or  although  made  under  a  sale  which  was  subse- 
quently invalidated  by  individual  or  judicial  action.8 (a)     A  tax- 

1  In  Henley  v.  Wilson,  8r  N.  C.  405,  where,  in  an  action  of  trespass  to  land, 
the  judge  instructed  the  jury  that  a  will,  devising  "  all  my  lands  on  boih  sides 
of  Haw  River,  in  Chatham  County,  and  all  the  mills  and  appurtenances  and 
improvements  thereto,  said  property  being  known  as  the  McClenahan  Mills," 
gave  color  of  title,  provided  the  jury  found  that  the  tract  was  well  known 
throughout  the  country  by  that  name,  and  that  the  boundaries  were  all  ascer- 
tainable and  visible,  and  the  plaintiff  was  in  actual  adverse  possession,  was 
sufficient  to  enable  him,  by  an  occupancy  of  part  of  the  land,  to  claim  the 
whole,  was  held  correct.  In  Congdon  v.  Morgan,  14  S.  C.  587,  an  entry  under 
a  deed,  and  marking  out  the  claim  by  survey  and  stakes,  and  building  a  wharf 
and  boat-sheds,  were  held  to  be  possessory  acts  under  color  of  title. 

*  Jackson  v.  Frost,  5  Cow.  (N.  Y.)  346;  Hall  v.  Law,  102  U.  S.  461;  Lynde  v. 
Williams,  68  Mo.  360;  Wales  v.  Smith,  19  Ga.  8;  Dobson  v.  Murphy,  1  D.  &  B. 
(N.  C.)  586;  Coleman  v.  Billings,  supra. 

3  La  Frombois  v.  Jackson,  8  Cow.  (N.  Y.)  589;  Mason  v.  Ayers,  73  111.  121; 
Forest  v.  Jackson,  56  NT.  H.  357;  Fagan  v.  Rosier,  68  111.  84;  McCamy  v.  Higdon, 
50  Ga.  629;  Russell  v.  Mandell,  73  111.  136;  Nowlin  r.  Reynolds,  25  Gratt.  (Va.) 
137;  Payne  v.  Blackshear,  52  Ga.  637. 

4  Ewing  v.  Burnet,  11  Pet.  (U.  S.)  41;   Moody  v.  Fleming,  4  Ga.  115. 

5  Murray  v.  Shanklin,  4  D.  &  B.  (N.  C.)  288. 

6  Hester  v.  Coats,  22  Ga.  56. 

1  Ibid.;  Riggs  v.  Dooly,  7  B.  Mon.  (Ky.)  236;  North  v.  Hammer,  34  Wis.  425; 
Northrop  v.  Wright,  7  Hill  (N.  Y.)476;  Brien  v.  Sargent,  13  La.  Ann.  198;  Baily 
v.  Doolittle,  24  111.  577. 

8  Hamilton  v.  Wright,  30  Iowa,  480.  But  see  Presley  v.  Holmes,  33  Tex.  476, 
where  it  was  held  that  where  a  title  under  which  an  occupant  holds  is  subse- 
quently invalidated  by  judicial  action,  his  possession  from  that  time  becomes 
tortious.     To  constitute  color  of  title,  some  act  must  have  been  done  conferring 

(a)  When  one  claims  under  color  of  v.  Davis,  68  Miss.  47S;  Zundel  v.  Bald- 
title,  the  nature  and  extent  of  his  win,  114  Ala.  328;  Furgerson  v. 
claim,  as  well  as  his  possession,  must  Bagley,  95  Ga.  516;  Libbey  v.  Young, 
be  made  known,  but  color  of  title  need  103  Iowa,  258;  Hebard  v.  Scott,  95  Tenn. 
not  necessarily  consist  of  recorded  in-  467.  Circumstances  which  show  suffi- 
truments.  Ozark  Plateau  Land  Co.  cient  notoriety  of  claim,  and  of  its  ex- 
v.  Hays,  105  Mo.  143,  150:  Bellefon-  tent  and  nature,  may  sometimes  impart 
taine  Impr.  Co.  v.  Niedringhaus,  181  to  an  unrecorded  or  even  void  docu- 
111.  426;  Donohue  v.  Whitney,  133  N.  ment  the  effect  of  color.  Ibid. ;  Nelson 
Y.  178;  Fullam  v.  Foster,  68  Vt.  590;  v.  Cooper,  10S  Fed.  Rep.  919;  Northern 
Moore  v,  Hinkle,   151  Ind.  343;  Davis  Pac.  Rv.  Co.  v.  Ely  (Wash.),  65  Pac.  555; 


592  STATUTES   OF   LIMITATION.  [CHAP.  XX. 

some  title,  good  or  bad,  to  a  parcel  of  land  of  definite  extent;  a  mere  disseisor 
cannot  resort  to  the  metes  and  bounds  of  the  tract  upon  which  he  wrongfully 
enters.  St.  Louis  v.  Gorman,  29  Mo.  593.  An  unrecorded  deed  is  good  color 
of  title.  Hardin  v.  Barrett,  6  Jones  (N.  C.)  L.  159.  An  administrator's  deed  is 
void  on  account  of  defects  in  the  order  of  sale.  Root  v.  McFerrin,  37  Miss.  17. 
So  a  deed  void  as  to  the  grantor's  creditors.  Harper  v.  Tapley,  35  Miss.  506. 
But  it  is  held  that  a  deed  which  disclaims  any  title  in  the  grantor  on  its  face  is 
not  good  color,  as  the  execution  of  a  bond  for  a  deed  signed  "  A.  B.,  Agent." 
Simmons  v.  Lane,  25  Ga.  178.  If  real  estate  is  held  in  common,  and  one  tenant 
assumes  to  convey  the  entire  land,  or  any  specific  part  of  it,  by  metes  and 
bounds,  his  deed  will  be  a  color  of  title,  and  possession  under  it  for  the  statu- 
tory period  will  be  adverse  to  the  title  of  the  cotenants,  and  bar  their  right  to 
recover  the  land  conveyed.  Weisinger  v.  Murphy,  2  Head  (Tenn.)  674. 
Though  a  tax  sale  of  land  be  irregular  and  invalid,  the  collector's  deed  in  con- 
nection with  proof  of  the  actual  possession  of  the  land  by  the  purchaser,  and 
those  claiming  under  him,  during  the  whole  period  of  limitation,  is  sufficient 
to  entitle  him  to  have  his  possession  protected  and  his  title  quieted.  Elliott  v. 
Pearce,  20  Ark.  508;  Cofer  v.  Brooks,  id.  542.  A  judgment  of  the  county  court 
in  proceedings  to  settle  the  estate  of  a  person  who,  though  represented  to  be 
dead,  proves  to  be  living,  cannot  support  a  claim  by  adverse  occupation,  under 
the  statute  authorizing  such  claim  when  founded  on  "  the  judgment  of  some 
competent  court;"  such  proceedings  in  administering  are  absolutely  void  for 
all  purposes.  Melia  v.  Simmons,  45  Wis.  334.  A  deed  made  by  a  clerk  or 
master  in  equity,  after  he  goes  out  of  office,  on  a  sale  made  by  him  while  in 
office,  is  color  of  title,  though  not  otherwise  operative.  Williams  v.  Council,  4 
Jones  (N.  C.)  L.  206.  A  sheriff's  deed,  accompanied  with  possession  under  it, 
gives  a  color  of  title  without  proof  of  the  judgment  and  execution,  and  affords 
a  starting-point  for  the  statute  of  limitations  to  run.  Hester  v.  Coats,  22  Ga. 
56.  The  universal  legatee  cannot  set  up  the  will  of  the  testator  as  a  just  title, 
and  make  it  the  basis  of  the  prescription  of  ten  years.     Griffon  v.  Blanc,  12  La. 

Power  v.  Kitching  (N.  D.),  86  N.  W.  It  is  essential  to  color  of  title  that 
737;  Nye  v.  Alfter,  127  Mo.  529.  See  the  premises  be  described  with  the 
Jones  on  Real  Property,  §  122  et  seq.j  same  degree  of  certainty  as  is  required 
1  Am.  &  Eng  Encyc.  of  Law  (2d  ed.),  in  deeds  relied  upon  as  absolute  con- 
p  846:  1  Encyc.  of  Law  &  Proc,  p  veyances.  Allmendinger  v.  McHie,  189 
1082.  Thus,  one  whose  house  is  on  111.  308,  31b;  see  O'Brien  v.  Good- 
adjoining  land,  who,  cultivating  the  rich,  177  Mass.  32.  The  fact  that  the 
land  in  dispute,  is  known  to  claim  un-  use  of  the  granted  premises  is  limited, 
der  an  unrecorded  and  unauthorized  by  the  deed  thereof,  to  a  particular 
guardian's  deed  thereof  to  him,  has  purpose,  does  not  interfere  with  its 
of  title  thereto,  especially  when  constituting  color  of  title.  Petit  v. 
the  real  owner  lives  near  by  and  knows  Flint  &  Pere  Marquette  R.  Co.,  119 
the  circumstances.      Plaster  v.  Grabeel  Mich.  492. 

<:()(>  Mo  ),   6l   S.    W.   Rep.   589.     So.  in         One   taking  possession   under   color 
Washington,    it     is    held    that    a    void  of  title  may  set    up   in   defense  a   sup- 
deed,   accompanied   by  actual  occupa-  posed  outstanding   title  in  a  third  per- 
tion,  is  sufficient  to  set   the  statute  in  son,  without  connecting  himself  "there- 
motion,  though  as  to  short  statutes  in  with,   because  his   possession    is   good 
relation  to  sales  of  realty  for  taxes  a  against  all    but  the  true  owner;  but  a 
-nt     view    has    been    expressed,  mere    trespasser    cannot   show   a  con- 
Hurd  v.  Brisner,  3  Wash.  St.  1;  Ward  v.  tinuity  of  the  adverse  holding  by  set- 
Huggins,  7  Wash.  617,  624;    Redfield  ting  up  such  a  title.     Lucy    v.    Tenn. 
1     ■   U.   S.  239;    Dibble  v..  Bel-  <S;  Coosa  R.  Co.,  92  Ala.  24G,  249. 
im  B  ly  Land  Co.,  163  U.  S.  63,  72. 


%  259-]  ADVERSE    POSSESSION    AND    REAL   ACTIONS.  593 

collector's  deed,1  a  paper  purporting  to  be  a  will,2  a  deed  from  a 
mortgagee,3  or  an  unrecorded  deed,  is  good  color  of  title.4  It 
has  been  intimated  that  there  may  be  color  of  title  without  any 
conveyance  in  writing,  and  that  it  may  be  created  by  an  act  in 
pais,  as  by  a  verbal  gift  of  land,  with  a  survey  and  surrender  of 
possession  by  the  donor  to  the  donee.5  In  one  case6  it  was  said 
that  an  entry  under  a  bona  fide  claim  originating  under  a  parol 
contract  for  the  purchase  of  land  and  payment  of  the  purchase- 
money,  where  the  boundaries  of  the  land  are  well  defined,  invests 
the  purchaser  with  all  the  benefits  of  constructive  possession,  the 
same  as  though  there  had  been  a  contract  in  writing  describing 
the  lands.7  A  deed  made  under  a  sale  of  a  life  estate  only,  does 
not  constitute  sufficient  color  of  title  to  become  the  basis  of  an 

An.  5.  A  title  by  descent  is  an  assurance  of  title.  Hubbard  •».  Wood,  1  Sneed 
(Tenn.)  279.  An  administrator  is  within  the  description  of  "  other  person 
authorized  to  sell  land,"  so  as  to  give  title  by  seven  years'  actual  residence. 
If  the  foundation  or  source  of  the  title  by  which  a  party  claims  under  the  lim- 
itation act  is  of  record,  the  title  is  "  deducible  of  record,"  within  the  meaning 
of  that  statute.  Collins  v.  Smith,  18  111.  160.  A  void  and  worthless  deed  is 
sufficient  as  foundation  of  an  adverse  possession.  Roberts  v.  Pillow,  Hemp. 
(U.  S.)  62+. 

s  Rivers  v.  Thompson,  43  Ala.  633. 

'  McConnell  v.  McConnell,  64  N.  C.  342. 

3  Stevens  v.  Brooks,  24  Wis.  326. 

4  See  Nowlin  v.  Reynolds,  25  Gratt.  (Va.)  137. 
s  Rannels  v.  Rannels,  52  Mo.  108. 

*  M'Call  v.  Neely,  3  Watts  (Penn.)  69.  A  defendant  in  ejectment,  desiring  10 
reiy  on  a  deed  as  color  of  title  for  the  purpose  of  establishing  title  by  prescrip- 
tion, need  not  show  affirmatively  that  the  person  who  made  the  deed  had 
either  title  or  possession,  apart  from  fraud.  A  written  agreement  to  divide 
lands  owned  or  claimed  in  common,  though  made  by  the  administrator  of  one 
of  the  tenants  in  common  without  an  order  from  court  for  the  partition  thereof, 
is  admissible  in  evidence  as  color  of  title,  and  though  such  an  agreement  does 
not  prescribe  the  line  with  great  certainty.  McMullin  v.  Erwin,  58  Ga.  427; 
McNamara  v.  Seaton,  82  111.  498.  A  title  bond,  whether  the  purchase-money 
be  paid  or  not,  save  as  against  the  vendor,  is,  if  connected  with  the  sovereignly 
of  the  soil,  title,  or  color  of  title,  under  which  a  defendant  may  maintain  his 
defense  under  the  statute  of  limitations  of  three  years.  Elliott  v.  Mitchell,  47 
Tex.  445.  But  in  Georgia,  to  make  an  execution  showing  levy  upon,  and  sale 
of,  certain  land,  admissible  as  color  of  title,  there  must  be  proof  that  a  deed 
was  executed  in  accordance  with  such  sale.  Baird  v.  Evans,  58  Ga.  350.  In 
all  cases,  in  order  to  a  disseisin  of  the  true  owner  by  adverse  possession  under 
a  defective  deed,  such  possession  must  be  exclusive.  Bellis  v.  Bellis,  122 
Mass.  414. 

1  Brown  v.  King,  5  Met.  (Mass.)  173;  Magee  v.  Magee,  37  Miss.  13S;  Robert- 
son v.  Wood,  15  Ark.  1. 

[stats,  of  lim.  —  38.] 


594  STATUTES   OF   LIMITATION.  [CHAP.   XX. 

adverse  possession,  because  it  does  not  purport  to  convey  the 
fee.1  But  a  deed  executed  after  her  decease,  by  a  husband,  of 
lands  in  which  his  wife  had  only  a  life  estate,  if  it  purports  to 
convey  the  fee,  will  be  a  sufficient  color  to  build  an  adverse 
possession  upon;2  because,  as  a  rule,  although  the  statute  will 
not  run  against  a  remainderman,3  yet  it  may  run  against  him 
after  the  estate  falls  in;  (a)  and  where  a  husband  sells  the  fee  of 
an  estate  of  which  he  is  only  seised  as  tenant  by  curtesy,  while 
the  statute  will  not  be  put  in  motion  as  to  the  wife  or  the  heirs 
of  the  wife  until  after  her  death,  yet  from  that  period  the  statute 
begins  to  run.4(£)     As  previously  stated,  any  writing  which  on 

1  Dewey  v.  McLain,  7  Kan.  126. 

2  Forest  v.  Jackson,  56  N.  H.  357. 

3  Jackson  v.  Sohoonmaker,  4  Johns.  (N.  Y.)  390;  3  Cruise's  Dig.  403;  Chesel- 
dine  v.  Brewer,  4  H.  &  McH.  (Md.)  4S7;  Hall  v.  Vandegift,  3  Binn.  (Penn.)  374; 
Henderson  v.  Griffin,  5  Pet.  (U.  S.)  150;  Litchfield  v.  Ready,  1  Eng  L.  &  Eq. 
460;   Bradstreet  v.  Huntington,  5  Pet.  (U.  S.)  40. 

4  Miller  v.  Schackleford,  3  Dana  (Ky.)  289;  Constantine  v.  Van  Winkle,  6  Hill 
(X.  Y.)  177;  Meraman  v.  Caldwell,  8  B.  Mon.  (Ky.)  32;  Melius  v.  Snowman,  21 
Me.  201;  Bruce  v.  Wood,  1  Met.  (Mass.)  542.  Where  the  wife  joins  with  the 
husband  in  the  deed  in  the  conveyance  of  an  estate  in  the  wife  in  tail,  the  stat- 
ute runs  from  the  date  of  the  deed  and  possession  under  it,  against  the  children. 
Giddings  v.  Smith,  15  Vt.  344.  But  if  the  conveyance  is  in  the  name  of  the 
husband,  and  the  wife  signs  the  deed,  "  in  token  of  the  relinquishment  of  all 
her  right  in  the  bargained  premises,"  it  has  been  held  that  the  wife  is  not  barred 
of  her  entry  after  the  husband's  decease,  Bruce  v.  Wood,  supra;  upon  the 
general  doctrine  that  the  remainder  man  cannot  be  barred  until  the  estate  falls 
in.  See  Gill  v.  Fauntleroy,  8  B.  Mon.  (Ky.)  177;  May  v.  Hill,  5  Litt.  (Ky.)  313; 
Patrick  v.  Chenault,  6  B.  Mon.  (Ky.)  315;   Cook  v.  Danvers,  7  East,  299;   Wal- 

{a)  See    Arnold    v.    Garth,    106  Fed.  table   as    well    as   legal    remedies    are 

Rep.    13;   Matson  v.  Abbey,  141   N.  Y.  barred  by  the  statute,  if  a  trustee  or 

179;    Meacham  v.  Bunting,  156  111.  586;  administrator  is  barred  of  his  remedy, 

Clark  v.  Parsons,  69  N.  H.  147;   Lum-  his  cestui  qtie  trust  are  also  barred,  even 

ley  7i.  Haggerty,  no  Mich.  552;   Bowen  though    they    include     remaindermen. 

v.  Brogan,  119  Mich.  218;  Whitaker  v.  Partee  v.    Thomas,   11   Fed.    Rep.   769, 

Whitaker,     157     Mo.     342:     Chambers  778;    Lloyd  v.    Ball,   77   id.   365;  East 

•<-.  Chambers,  139  Ind.  Ill;   Hanson  v.  Rome   Town   Co.    v.    Cothran,    81    Ga. 

Ingwaldson,  77  Minn.    533;    Lamar   v.  359;    Weems   v.  Simpson,  93  Ga.  364; 

lv  irre,  82  Ga.   354;  Hoskins  v.  Ames  Barclay  v.  Goodloe,  83  Ky.  493. 
C Miss.  \  29  S.  E.  828;  Robinson  v.  Pierce.         As  a  rule,  a  payment  by  a  tenant  for 

118  Ala.  273;  Anderson  v.  Northrop,  30  life  binds  the  remainderman.     Leahy 

I  I  1    612;   /'/  re  Owen,  [1894]  3  Ch.  220;  v.  De  Moleyns,  [1896]   1   I.  R.  206;  see 

Ticbborne   v.  Weir,  (.7  I..  T.  735;   Mor-  Barcroft  v.  Murphy,  id.  590. 
r  >w  .-■.  J;iMirs  (Ark.)  04  S.  W.  269;  Jef-        (/')  As  to  the  estate  by  the  curtesy, 

fries    v.    Butler   (Kv.)    Sr'   S.    W.    079;  as   the    husband    is    the    one    entitled 

Allen    v.    \>-    Groodt,    98   Mo.   159,    14  to  sue    for  the  possession,   the   statute 

Am.    St.    Rep.  '<2'>,  ami   note;   Gindrat  runs  against   the  wife  or  her  descend- 

7.  Alu.  Western    Kv.  (Ala.)  ig  I..  R.  A.  ants  only  when  such  estate  terminates. 

839,  and  note.     When,   however,  equi-  Dawson   v.  Edwards,  189  111.  60. 


§  2  59-]  ADVERSE    POSSESSION   AND    REAL   ACTIONS.  595 

its  face  purports  to  convey  certain  lands  affords  sufficient  color  of 

lingford  v.  Hearl,  15  Mass.  471;  Jackson  v.  Johnson,  5  Cow.  (N.  Y.)  74;  Wells 
v.  Prince,  9  Mass.  508;  Jackson  v.  Sellick,  8  Johns.  (N.  Y.)  262;  Heath  v.  White, 
5  Conn.  228.  Where  there  are  two  separate  rights  of  entry,  the  loss  of  one  by 
lapse  of  time  does  not  impair  the  other;  and  if  a  person  acquires  a  second  right, 
he  is  allowed  a  new  period  in  which  to  pursue  his  remedy,  although  he  has  neg- 
lected his  first.  2  Cruise's  Dig.  498;  Goodright  v.  Forrester,  8  East,  551; 
Hunt  v.  Bourne,  1  Salk  339.  A  remainderman  expectant  on  an  estate  for  life 
or  years,  who  has  a  right  to  enter  because  of  the  forfeiture  of  the  tenant,  is  not 
bound  to  avail  himself  of  the  forfeiture,  and  his  neglect  to  enter  at  that  time 
does  not  bar  him  of  his  entry  on  the  limitalion  of  the  estate  by  efflux  of  time 
or  the  death  of  the  tenant.  Stowel  v.  Zouch,  1  Plowd.  374;  Salmons  v.  Davis, 
29  Mo.  176;  Woodson  v.  Smith,  1  Head  (Tenn.)  276;  Stevens  v.  Winship,  1  Pick. 
(Mass.)  318;  Bell  v.  McCawley,  29  Ga.  355;  Miller  v.  Evving,  6  Cush.  (Mass.)  34; 
Gibson  v.  Jayne,  37  Miss.  164;  Gwynn  v.  Jones,  2  G.  &  J.  (Md.)  173;  Wells  v. 
Prince,  9  Mass.  508;  Allen  v.  Blake  way,  5  C.  &  P.  563.  This  rule  accorded 
with  the  maxim  of  the  old  civil  law,  quando  duo  jura  concurrunt  in  und  persona 
aquum  est  ac  si  essent  in  diversis.  According  to  Plowden,  in  Stowel  v.  Zouch, 
Plowd.  374,  when  there  were  three  separate  rights  in  the  same  person,  he  was 
entitled  to  the  benefits  of  all  of  them  the  same  as  though  they  existed  in  three 
different  persons.  But  in  England,  by  statute,  this  old  principle  is  abolished, 
except  in  cases  where  the  same  person  who  has  the  reversion  has  also  the  par- 
ticular estate.  Johnson  v.  Liversedge,  11  M.  &  W.  517;  Hall  ?;.  Moulsdale,  16 
M.  &  W.  689.  But  after  the  estate  has  fallen  in.  the  reversioner  must  enter 
upon  the  land  within  the  statutory  period,  Altemas  v.  Campbell,  9  Watts 
(Penn.)  28;  Berrington  v.  Parkhurst,  13  East,  489;  Ridgely  v.  Ogle,  4  H.  & 
McH.  (Md.)  123;  Goodright  v.  Cator,  1  Doug.  477;  Doe  v.  Danvers,  7  East,  299; 
Harbaugh  v.  Moore,  ir  G.  &  J.  (Md.)  283;  Jackson  v.  Haviland,  13  Johns.  (N. 
Y.)  229;  Brown  v.  Porter  10  Mass.  93;  or  bring  an  action  for  the  recover  of  the 
possession,  in  which  case  the  confession  of  lease,  entry,  and  ouster  dispense 
with  an  entry,  3  Cruise's  Dig.  383;  Den  v.  Moore,  8  N.  J.  L.  6;  Bond  v.  Hop- 
kins, 1  Sch.  &  Lef.  413;  Jackson  v.  Cairns,  20  Johns.  (N.  Y.)  301.  In  order  to 
make  an  entry  effectual,  it  must  be  made  upon  the  land,  Anonymous,  Skinn. 
412;  Kennebec  Purchase  v.  Laboree,  3  Me.  275;  Robinson  v.  Sweet,  3  id.  316; 
and  if  it  lies  in  two  or  more  counties,  entry  must  be  made  in  each  county,  Jack- 
son v.  Lunn,  3  Johns.  (N.  Y.)  Cas.  109.  But  if  an  actual  entry  is  prescribed  by 
force  or  fraud,  then  his  intention  to  enter,  made  as  near  the  land  as  possible 
has  been  held  sufficient  as  an  equivalent  for  an  entry.  Jackson  v.  Haviland,  13 
Johns.  (N.  Y.)  229;  Jackson  v.  Schoonmaker,  4  id.  38q;  2  Cruise's  Dig.  289. 
The  entry  must  be  made  animo  clamandi  and  must  be  indicated  either  by  acts 
or  words  accompanying  the  act,  Robinson  v.  Swett,  3  Me.  316;  and  must  bear 
on  its  face  an  unequivocal  challenge  of  the  occupant's  right,  Altemas  v.  Camp, 
bell,  supra;  and  whether  so  made  or  not  is  a  question  for  the  jury,  Miller  v. 
Shaw,  supra;  Dillon  v.  Mattox,  21  Ga.  113;  Holtzapple  v.  Phillibaum,  4  Wash. 
(U.  S.)  356;  Brown  v.  M'Kinnsy,  9  Watts  (Penn.)  565;  Hooper  v.  Garner,  15 
Penn.  St.  517.  The  entry  may  be  made  by  the  reversioner  in  person  or  by  his 
agent.  Hinman  v.  Cranmer,  9  Penn.  St.  40;  Ingersoll  v.  Lewis,  n  id.  212;  or 
even  an  entry  made  by  a  person  not  authorized  may  be  ratified  so  as  to  make 
it  operative,  Hinman  v.  Cranmer,  supra. 


596  STATUTES   OF   LIMITATION.  [CHAP.   XX. 

title  for  the  purposes  of  the  statute,  although  fraudulent  on  the 
part  of  the  grantor,1  or  defective,2  or  invalid,3  or  void,4  or  a  deed 
from  one  having  no  title  or  authority  to  convey,5  or  a  quitclaim 
deed  which  conveys  no  interest.6  Thus,  a  deed  executed  by  an 
attorney  without  authority,7  or  by  an  officer  upon  a  tax  sale  which 
was  invalid,8  or  by  an  administrator  which  was  void  for  want  of 
notice  to  the  heirs,9  or  a  quitclaim  deed  from  a  person  who  had 
no  interest,10  and,  in  a  word,  however  groundless  the  supposed 
title  may  be,  if  the  writing  purports  to  convey  it,  it  affords  color 
of  title,  and  a  proper  basis  for  an  adverse  possession  under  it.11 
Indeed,  it  has  been  held  that  any  instrument  having  a  grantor 
and  grantee,  and  containing  a  description  of  the  lands  intended 
to  be  conveyed,  and  apt  words  for  their  conveyance,  gives  color 
of    title.12     The    rule    which    is    generally    adopted,    and    which 

1  Griffin  v.  Stamper,  17  Ga.  108;  Gregg  v.  Sayre,  8  Pet.  (U.  S.)  244.  A  deed, 
although  not  recorded,  which  purports  to  convey  title,  no  matter  on  what 
founded,  is  held  to  amount  to  color  of  title.  Lea  v.  Polk  County  Copper  Co.,  21 
How.  (U.  S.)493;  Hanna  v.  Renfro,  32  Miss.  125;  Dickenson  v.  Breeden,  30  111. 
279.  It  has  been  held  that  color  of  title  may  be  given  without  any  writing. 
McClellan  v.  Kellogg,  17  111.  49S. 

'  McClellan  v.  Kellogg,  17  111.  498. 

3Cofer  v.  Brooks,  20  Ark.  542;  Elliott  v.  Pearce,  id.  508. 

4  Whitesides  v.  Singleton,  1  Meigs  (Tenn.)  207;  Cornelius  v.  Giberson,  25  N.  J. 
L.  1;  Vancleve  v.  Wilkinson,  13  Ind.  105;  Ewing  v.  Burnet,  11  Pet.  (U.  S.)4i; 
Livingston  v.  Pendergast,  34  N.  H.  544. 

5  Hill  v.  Wilson,  2Murph.  (N.  C.)  14;  Munro  v.  Merchant,  28  N.  Y.  9;  Farrow 
v.  Edmundson,  4  B.  Mon.  (Ky.)  605. 

6  Minot  v.  Brooks,  16  N.  H.  374;  McCamy  v.  Higdon,  50  Ga.  629. 
1  Hill  ?'.  Wilson,  supra. 

8  Elliott  v.  Pearce,  supra. 

9  Vancleve  v.  Wilkinson,  supra. 
'"  Minot  v.  Brooks,  16  N.  H.  374. 

11  La  Frombois  v.  Jackson,  5  Cow.  (N.  Y.)  589. 

''-'  lirooks  v.  Bruyn,  35  111.  392;  Childs  v.  Showers,  18  Iowa,  261.  A  bona  fide 
claim  by  color  of  title  is  not  disparaged  by  the  claimant's  knowledge  that  the 
boundary  lines  are  uncertain,  and  the  title  disputed.  Cornelius  v.  Giberson,  25 
N.J.  L.  1.  Color  of  title  is  anything  in  writing,  connected  with  the  title,  which 
serves  to  define  the  extent  of  the  claim.  Walls  v.  Smith,  19  Ga.  8.  Where  one 
is  in  possession,  claiming  title  under  and  pursuant  to  a  state  of  facts,  which  of 
themselves  show  the  character  and  extent  of  his  claim,  such  facts  perform 
sufficiently  the  office  of  color  of  title.  Bell.  v.  Longworth,  6  Ind.  273.  That 
color  in  ty  \)t-  given  for  title  without  any  writing,  and  commence  in  trespass, 
and  when  founded  on  writing  it  is  not  essential  that  it  should  show  on  its  face 
a  prima  facie  title,  but  it  miy  be  good  as  a  foundation  for  color,  however  defec- 
tive, see  McClell  in  v.  Kellogg,  17  111.  498.  A  written  instrument  is  not  always 
necessary  to  constitute  color  of  title,  but  there  must  in  all  cases  be  some  indicia 


§  259-]  ADVERSE    POSSESSION   AND    REAL   ACTIONS.  597 

seems  to  be  the  only  one  resting  upon  any  accurate  basis,  is,  that 
color  of  title  is  that  which  in  appearance  is  title,  but  which  in 
reality  is  no  title;  and  the  question  as  to  what  is  color  of  title  is 
merely  a  question  of  law  for  the  court,  leaving  the  question 
of  occupancy  under  it,  and  of  bona  fides  in  those.  States  where  by 
statute  it  is  required  to  be  established,  for  the  jury.1  A  valid 
and  perfect  title  is  not  required;2  and  a  deed  without  a  seal,3  or 
one  that  is  not  recorded,4  is  sufficient,  (a) 

In  Louisiana,  by  statute,  good  faith  on  the  part  of  the  occu- 
pant is  made  an  essential  element;  but  while  in  some  of  the  early 
cases  in  some  of  the  States  the  courts  seem  to  hold  that  good 
faith  on  the  part  of  the  grantee  is  a  material  element  in  determin- 
ing whether  a  conveyance  operates  as  color  of  title  or  not,  yet  it 
is  not  easy  to  understand  how  that  question  can  be  of  any  sort  of 
importance,  except  where  it  is  made  a  necessary  element  by 
statute.  One  of  the  very  essentials  of  color  of  title  is  that  it 
shall  be  raised  by  an  instrument  which  appears  to  convey  a  title, 
but  in  reality  conveys  none;  and  it  would  seem  almost  ridiculous 
that  it  could  be  of  any  sort  of  importance  for  the  purpose  of 
acquiring  title  under  such  a  conveyance,  whether  the  grantee 
acted  in  good  faith  in  obtaining  it  or  not  His  act  in  entering 
into  possession  is  a  wrong,  and  his  possession  continues  wrongful 

or  visible  acts  of  ownership,  which  are  apparent  to  all,  showing  the  extent  of 
the  boundaries  of  the  land  claimed.  Cooper  v.  Ord,  60  Mo.  420.  Color  of  title 
is  that  which  is  a  title  in  appearance,  but  not  in  reality;  and  possession  under 
an  invalid  deed  draws  to  it  the  protection  of  the  statute.  Wright  v.  Mattison, 
18  How.  (U.  S.)  50;  Arrowsmith  v.  Burlingame,  4  McLean  (U.  S.)  490;  Holden 
v.  Collins.  5  id.  i?q;  Barger  v.  Miller,  4  Wash.  (U.  S.)  280.  In  California, 
"  radeo"  boundaries  are  equivalent  to  notorious  evidence  of  possession.  Boy- 
reau  v.  Campbell,  1  McAll.  (U.  S.)  119.  The  sale  by  an  administrator  of  a 
solvent  estate  of  his  intestate's  land  under  license  does  not  give  color  of  title, 
unless  a  deed  is  executed.  Livingston  v.  Pendergast,  34  N.  H.  544.  See  also 
Hester  v.  Coats,  22  Ga.  56. 

1  Hanna  v.  Renfro,  32  Miss.  125;  Dickinson  v.  Brown,  30  111.  299;  Wright  v. 
Mattison,  18  How.  (U.  S.)  50;  Wales  v.  Smith,  19  Ga.  8;  Lea  v.  Polk  County 
Copper  Co.,  21  How.  (U.  S.)  493. 

2  Close  v.  Samm,  27  Iowa,  503;  Hines  v.  Robinson,  57  Me.  324;  Field  v.  Boyn- 
ton,  33  Ga.  239. 

3  Barger  v.  Hobbs,  67  111.  592. 

4  Rawson  v.  Fox,  65  111.  200. 

(a)  The  belief  of  the  occupant  that     occupation  adverse.     Mixter  v.  Wood- 
his  title  is  absolute,  when  in  fact  it  is     cock,  154  Mass.  535. 
only  a  life  estate,  does  not  make  his 


59§  STATUTES   OF   LIMITATION.  [CHAP.  XX. 

until  it  ripens  into  a  right  by  virtue  of  a  continuance  of  the  wrong 
for  the  requisite  statutory  period.  Without  any  title  whatever, 
except  a  naked  claim  resting  in  parol,  and  which  the  person  mak- 
ing knows  to  be  groundless,  it  is  universally  held  that  a  title  may 
be  acquired  to  the  extent  of  the  actual  occupancy.  Now,  by 
what  process  of  reasoning  is  any  bona  fides  dispensed  with  in  the 
former  case,  and  insisted  upon  when  a  person  enters  under  a 
color  of  title?  True,  in  the  latter  case,  the  occupant  is  not  re- 
stricted to  his  actual  occupancy,  but  is  treated,  under  proper 
limitations,  as  constructively  in  possession  of  all  the  land  that  is 
described  in  and  prima  facie,  conveyed  by  the  conveyance  to 
him.  It  has  never  been  intimated  that  the  doctrine  of  construc- 
tive possession  was  extended  to  such  cases  because  of  the  good 
faith  of  the  occupant  in  taking  his  conveyance,  but  it  is  predicated 
entirely  upon  the  ground  that  the  conveyance  marks  the  limit  of 
his  claim,  and  operates  as  notice  to  everybody  of  its  limit  and 
extent,  and  it  is  upon  this  ground  alone  that  the  doctrine  rests, 
subject  to  the  condition  that  there  is  an  actual,  open,  visible, 
uninterrupted,  and  hostile  occupancy  of  a  part  of  the  premises 
conveyed  for  the  full  statutory  period.1 

1  The  strictest  proof  of  the  hostile  inception  of  the  possession  is  required.  As 
to  ihe  supervening  change  of  possession,  that  must  be  proved  by  an  accession 
of  another  title,  and  other  circumstances  furnishing  a  motive  for  exclusive  claim. 
See  United  States  v.  Arredondo,  6  Pet.  (U.  S.)  743;  Clark  v.  Courtney,  5  id.  31S, 
354;  Bradstreet  v.  Hunt:ngton,  id.  402;  M'lver  v.  Ragan,  2  Wheat.  (U.  S.)  29; 
Kirk  v.  Smith,  9  id.  241,  288;  La  Frombois  v.  Jackson,  8  Cow.  (N.  Y.)  589; 
Gittens  v.  Lowry,  15  Ga.  336;  Jackson  v.  Potter,  1  Paine  (U.  S.)  457;  Markley 
v.  Amos,  2  Bailey.  603;  Ray  v.  Barker,  r  B.  Mon.  (Ky.)  364;  Moore  v.  Moore, 
21  Me.  350;  Lamb  v.  Foss,  id.  240;  Millay  v.  Millay,  18  id.  3S7;  Hamilton  v. 
Paine,  17  id.  219;  Read  v.  Thompson,  5  Penn.  St.  327;  Dikeman  v.  Parrish,  6  id. 
210;  Hall  v,  Stephens,  9  Met.  (Mass.)  418;  Moore  v.  Johnston,  2  Speers  (S.  C.) 
288;  Rogers  v.  Hillhouse,  3  Conn.  39S;  Borrets  v.  Turner,  2  Hayw.  (N.  C.)  114; 
Armour  v.  While,  id.  69;  Grant  v.  Winborne,  id.  56;  Anonymous,  id.  134; 
Hatch  v.  Hatch,  id.  34;  Tasker  v.  Whittington,  1  H.  &  McH.  (Md.)  151.  The 
statute  ripens  no  possession  into  title  which  is  unaccompanied  with  a  color  of 
title,  but  there  need  not  be  a  rightful  title.  Jackson  v.  Wheat.  18  Johns.  (N.  Y.) 
44:  Jackson  v.  Newton,  id.  355;  Smith  v.  Lorrillard,  10  id.  356;  Smith  v.  Burtis, 
9  id.  180;  Jackson  v.  Woodruff,-  1  Cow.  (N.  Y.)  276;  Jackson  7>.  Camp,  id,  605. 
An  en'ry  under  color  or  claim  of  title  is  sufficient  and  it  is  immaterial  whether 
!•■  afterwards  turns  out  to  be  valid  or  invalid.  Nor  is  it  material,  when 
the  entry  is  made  under  a  conveyance,  whether  such  conveyance  does  or  does 
not  contain  covenants  of  warranty.  Jackson  v.  Newton,  18  Johns.  (N.  Y.)  355. 
The  fact  that  the  purchaser  from  the  sheriff  is  afterwards  induced  to  doubt  the 
validity  of  his  title  under  the  sheriff's  sale,  where  he  continues  in   possession 


§  259-]  ADVERSE    POSSESSION   AND    REAL   ACTIONS.  599 

We  think  that  the  weight  of  authority  sustains  the  rule  that 
any  instrument  which  purports  to  convey  lands,  and  describes 
them  definitely,  and  upon  its  face  appears  to  be  a  valid  deed  or 
conveyance  of  the  premises,  is  a  sufficient  color  of  title,  regard- 
less of  the  question  of  bona  fides  or  mala  fides  on  the  part  of  the 
grantee  under  it.  The  office  of  such  conveyances  is  to  mark  the 
limits  of  the  occupant's  claim,  and  they  are  admitted  in  evidence, 
not  necessarily  to  prove  title,  but  merely  to  indicate  the  extent 

under  the  same,  it  seems,  will  not  destroy  t'ue  adverse  character  of  that  posses- 
sion. Northrop  v.  Wright,  7  Hill  (N.  Y.)  476.  A  sheriff's  deed  is  held  admis- 
sible in  evidence  as  color  of  title,  although  unaccompanied  by  the  execution 
under  which  the  property  was  sold,  and  the  sheriff  sold  without  authority. 
Burkhalter  v.  Edwards,  16  Ga.  593.  A  sheriff's  deed  which  recited  ihe  execu- 
tion under  which  the  sheriff  sold  the  land,  tested  and  signed  by  the  deputy  clerk 
instead  of  the  clerk  himself,  inures  as  color  of  title,  although  the  State  constitu- 
tion requires  all  writs  to  bear  teste  and  be  signed  by  the  clerks  of  the  respective 
courts.  Den  v.  Putney,  3  Murph.  (N.  C.)  562.  One  who  enters  into  pos- 
session of  land  under  a  deed  purporting  to  convey  to  him  an  estate  in  fee, 
claiming  to  be  sole  and  exclusive  and  absolute  owner  in  fee  thereot,  may  be 
regarded  as  holding  adverse  to  all  the  world.  Bradstreet  v.  Huntington,  5  Pet. 
(U.  S.)  401.  A  deed  purporting  to  be  executed  by  virtue  of  a  power  of  attorney 
from  the  owner  of  the  land,  which  power  is  not  proved,  affords  sufficient  color 
of  title  on  which  to  found  an  adverse  possession,  if  there  has  been  a  good  con- 
structive possession  under  it.  Monro  v.  Merchant,  28  N.  Y.  9.  To  give  color 
of  title  does  not  .require  the  aid  of  a  written  conveyance  or  other  evidence  in 
writing;  but  it  is  only  necessary  that  the  entry  be  made  under  a  bona  fide  and 
not  a  pretended  claim  of  title  existing  in  another.  La  Frombois  v.  Jackson,  8 
Cow.  (N.  Y.)  589;  M'Call  v.  Neely,  3  Watts  (Penn.)  70.  Even  if  the  grantor  in 
deeds  be  justly  chargeable  with  fraud,  but  the  grantees  did  not  participate  in 
it,  and  when  they  received  their  deeds  had  no  knowledge  of  it,  but  accepted 
the  same  in  good  faith,  the  deeds  upon  their  face  purporting  to  convey  a  title 
in  fee,  and  showing  the  nature  and  extent  of  the  premises,  there  can  be  no 
doubt  the  deeds  give  color  of  title  under  the  statute  of  limitations.  Gregg  v. 
Sayre's  Lessee,  8  Pet.  (U.  S.)  244.  It  is  settled  that,  however  wrongful  or 
fraudulent  the  possession,  or  defective  the  title,  an  entry  under  claim  of  exclu- 
sive title,  founding  such  claim  upon  a  written  conveyance,  accompanied  by  a 
continued  possession  for  the  requisite  period,  constitutes  an  effective  adverse 
possession.  The  muniment  is  but  one  circumstance  by  which  to  make  out  an 
adverse  possession.  An  oral  claim  of  exclusive  title  or  any  other  circumstances 
by  which  the  absolute  owner  of  land  is  distinguished  from  the  naked  possessor, 
are  equally  admissible,  and  may  be  equally  satisfactory.  Humbert  v.  Trinity 
Church,  24  Wend.  (N.  Y.)  587.  Bona  fides  is  not  requisite  to  adverse  possession, 
although  there  aie  some  cases  in  which  the  idea  is  intimated  that  fraud  may- 
be received  as  an  answer  to  the  statute,  when  it  is  interposed  against  a  legal 
claim.  But  those  cases  generally  arose  under  the  statutes  concerning  cham- 
petry  and  maintenance.  Jackson  v.  Andrews,  7  Wend.  (N.  Y.)  152;  Livingston 
v.  Peru  Iron  Co.,  9  id.  511.     After  the  statutory  limit,  it  is  always  dangerous 


600  STATUTES   OF   LIMITATION.  [CHAP.  XX. 

of  an  occupant's  claim,  and  as  a  defense  under  the  statute  of 
limitations  in  connection  with  proof  of  the  requisite  period  of 
occupancy.1  In  Louisiana,  the  statute  makes  a  distinction 
between  a  person  who  enters  in  good  faith  and  a  just  title  and 
one  who  does  not.  In  the  former  case  possession  is  acquired  in 
ten  years,  but  lands  are  prescribed  for  in  thirty  years  without 
any  need  of  good  faith  or  title.  In  most  of  the  other  States  the 
statute  is  silent  upon  this  point,  and  indeed  in  most  of  them  the 
entire  doctrine  relative  to  constructive  possession  is  the  outgrowth 
of  judicial  decisions. 

Sec.  260.  Executory  Contracts,  &c,  Possession  under.  — When 
an  instrument  is  executed  to  a  person  which  on  its  face  shows 
that  the  entry  is  not  under  a  claim  of  title  in  himself,  but  that  it 
is  in  another,  it  follows  as  a  necessary  consequence  that  it  does 
not  afford  color  of  title,  and  that  no  length  of  possession  under 
it  can  ripen  into  an  adverse  title;  and  under  this  rule  it  follows 
that  a  possession  and  claim  of  land  under  an  executory  contract 
of  purchase  is  not  such  an  adverse  possession  as  will  render  a 
deed  from  the  true  owner  void  for  champerty  or  maintenance; 
nor  is  it  such  an  adverse  possession  as,  if  continued  for  the  requi- 
site period,  will  bar  an  entry  within  the  statute  of  limitations; 
and  especially  it  is  in  no  sense  adverse  as  to  the  one  with  whom 
the  contract  is  made.2 

to  open  an  inquiry  upon  the  bona  fides  of  the  defendant's  claim.  See  Den  v. 
Leggat,  3  Murph.  (N.  C.)  539.  This  accords  with  the  general  tenor  of  all  the 
cases,  and  as  early  as  the  reign  of  Queen  Elizabeth  the  English  courts  recog- 
nized  the  doctrine.  See  Stowell  v.  Lord  Zouch,  Plowden,  358,  371;  Maddock 
v.  Bond,  1  Irish  T.  R.  332,  340.  Some  of  these  cases  arose  under  statutes  of 
short  limitation,  and  the  strict  doctrine  laid  down  is  more  appropriate  in  cases 
of  long  than  those  of  short  limitation.  See  Cholmondeley  v.  Clinton,  2  J.  & 
W.  I,  139,  155.  In  all  cases,  unless  a  statute  intervenes  and  establishes  a 
different  doctrine  a  possession  to  be  adverse  need  only  to  be  under  color  or 
claim  of  title,  that  is,  inconsistent  with  the  title  of  the  claimant  who  is  out  of  pos- 
session. Norihrup  v.  Wright,  7  Hill  (N.  Y.)  476;  Bogardus  v.  Trinity  Church, 
4  Sandf.  (M.  Y.)  Ch.  633,  712,  738.  It  is  the  office  of  the  statute  to  mature  a 
possession,  in  itself  wrongful,  if  accompanied  by  even  a  pretense  of  title,  into 
a  leg  il  right.  In  some  of  the  Stales,  as  in  Georgia,  it  was  provided  by  statute 
that  no  possession  is  adverse  unless  evidenced  by  written  evidence  of  title,  and 
any  forg-d  or  fraudulent  title  will  not  be  evidence  of  adverse  possession.  But 
this  is  contrary  to  the  general  rule.     Tyler  on  Ejectment,  86i„ 

1  Finlay  v.  Cook,  54  Barb.  (N.  Y.)  o. 

'Jackson  v.  Johnson,  5  Cow.  (N.  Y.)  74;  Higcjinbotham  v.  Fishback,  1  A.  K. 
Mir.    (Ky.)  506;   Wilkinson   1     Nichols,    1    B.    Mon.   (Ky.)   36;    Richardson    v. 


§  26o.]  ADVERSE    POSSESSION    AND    REAL   ACTIONS.  6c  I 

To  constitute  an  adverse  possession,  it  must  not  only  be  hostile 
in  its  inception,  but  the  possessor  must  claim  the  entire  title; 
for  if  it  be  subservient  to,  and  admits  the  existence  of,  a  higher 
title,  it  is  not  adverse  to  that  title.1  But  where  a  contract  is  made 
for  the  sale  of  land  upon  the  performance  of  certain  conditions, 
and  the  purchaser  enters  into  possession  under  the  contract,  his 
possession  from  the  time  of  entry  is  adverse  to  all  except  his 
vendor,2  and  it  seems  now  to  be  well  settled  that,  after  the  per- 
formance by  him  of  all  the  conditions  of  the  contract,  he  from 
that  time  holds  adversely  to  the  vendor,  and  full  performance  is 
treated  as  a  sale,  and  the  party  in  possession  may  acquire  a  good 
title  as  against  the  vendor  by  the  requisite  period  of  occupancy.3 
But  an   entry  cannot   become  adverse  where  it  is  made   upon   a 

Broughton,  2  N.  &  McC.  (S.  C.)  4.17;  Fowke  v.  Darnall,  5  Litt.  (Ky.)  316;  Chiles 
v.  Bridges,  Lilt.  Sel.  Cas.  (Ky.)  420;  Kirk  v.  Smith,  9  Wheat.  (U.  S.)  288;  Jack- 
son v.  Hotchkiss,  6  Cow.   (N.   Y.)  401. 

1  Botts  v.  Shield,  3  Litt.  (Ky.)  34;  Proprietors  v.  M'Farland,  12  Mass.  324; 
Knox  v.  Hook,  id.  329. 

2  Whilney  v.  Wright,  15  Wend.  (N.  Y.)  171;  Woods  v.  Dille,  11  Ohio,  455. 
See  sec.  219. 

3Ridgevvay  v.  Holliday,  59  Mo.  444;  Clapp  v.  Bromagham,  9  Cow.  (N.  Y.) 
530;  Brigg-;  v.  Prosser,  14  Wend.  (N.  Y.)  228;  Ex  parte  Department  of  Public 
Parks,  73  N.  Y.  560;  La  Frombois  v.  Jackson,  supra;  Vrooman  v.  Shepherd,  14 
Barb.  (N.  Y.)  441;  Fain  v.  Garthright,  5  Ga.  6;  Brown  v.  King,  5  Met.  (Mass.) 
173;  Catlin  v.  Delano,  38  Conn.  262;  Stark  v.  Starr,  1  Sawyer  (U.  S.  C.  C.)  15; 
M'Call  v.  Neely,  3  Watts  (Penn.)  69;  Hunter  v.  Parsons,  2  Bailey  (S.  C.)  59; 
Bank  v.  Smyers,  2  Strobh.  (S.  C.)  24;  Fowke  v.  Beek,  1  Speers  (S.  C.)  291  Any 
possession  which  is  accompanied  by  the  recognition  of  a  superior  title  still 
existing  cannot  be  adverse.  Griswold  v.  Butler,  3  Conn.  246.  But  where  a 
person  enters  under  an  agreement  to  purchase,  whether  by  parol  or  otherwise, 
and  pays  for  the  land,  or  takes  a  deed  which  is  defective,  the  possession  from 
that  time, prima  facie  becomes  adverse.  So.  School  Dist.  v.  Blakeslee,  13  Conn. 
235;  French  v.  Pearce,  8  id.  439;  Bryan  v.  Atwater,  5  Day  (Conn.)  181.  In 
such  a  case,  after  the  requisite  statutory  period,  the  jury  may  presume  a  con- 
veyance. Maltonner  v.  Dimmick,  4  Barb.  (N.  Y.)  566.  Specific  performance 
of  such  a  contract  will  not  be  denied,  even  though  thirty  years  have  elapsed 
since  the  right  to  have  it  matured.  Somerville  v.  Trueman,  4  H.  &  McH.  (Md.) 
43;  Ripley  v.  Yale,  18  Vt.  220;  Appleby  v.  Obert,  16  N.  J.  L.  336,  Ellison  v. 
Cathcart,  1  McMull.  (S.  C.)  5;  Pendergrast  v.  Gullatt,  10  Ga.  218;  Magee  v. 
Magee,  37  Miss.  138;  Drew  v,  Towle,  31  N.  H.  531;  McQueen  v.  Ivey,  36  Ala. 
308;  Lander  v.  Rounsaville,  12  Tex.  195;  Paxson  v.  Bailey,  17  Ga.  600.  But 
while  the  contract  is  unperformed  on  the  part  of  the  vendee,  and  he  is  in  pos- 
session, he  is  treated  as  a  tenant  at  will  to  the  vendor,  and  not  as  a  disseisor. 
Brown  v.  King,  supra;  Stamper  v.  Griffin,  20  Ga.  312;  Van  Blarcom  v.  Kip,  26 
N.  J.  L.  351;  Judger  v.  Barnes,  1  Heisk.  (Tenn.)  570;  Ormond  v.  Martin,  1 
Ala.  Sel.  Cas.  526. 


602  STATUTES   OF   LIMITATION.  [CHAP.   XX. 

condition  to  be  performed  by  the  person  entering  until  it  is  per- 
formed. Thus,  where  a  person  goes  into  possession  of  land  under 
an  agreement  to  exchange,  and  to  pay  a  balance  thereon,  a  con- 
veyance to  be  made  when  such  balance  is  paid,  the  possession 
cannot  become  adverse  until  such  balance  is  paid.1  The  fact  that 
a  vendee  under  a  contract  to  purchase,  who  went  into  possession 
under  it,  abandons  the  possession  of  the  land,  and  subsequently 
goes  into  possession  under  a  lease  from  another,  will  not  make 
his  possession  adverse  to  his  vendor.  His  second  entry  and  pos- 
session relates  back  to,  and  continues  the  possession  under,  the 
original  possession,  and  will  not  create  a  new  and  adverse  posses- 
sion.3 This  is  also  the  rule  as  to  all  permissive  entries  upon  land, 
as  under  a  license,  etc.,  so  long  as  the  license  remains  unrevoked, 
there  can  be  no  adverse  occupancy,  but  possession  continued  after 
the  license  has  expired  may  become  adverse.3  And  the  same 
rule  holds  as  to  any  permissive  entry.  So  long  as  the  occupation 
is  under  such  permission,  the  possession  cannot  be  adverse;  but 
when  the  permission  is  withdrawn,  or  terminates  by  efflux  of 
time,  or  the  occupant  disclaims,  and  gives  notice  of  such  dis- 
claimer to  the  person  under  whom  he  entered,  he  may  hold 
adversely.4     The  rule  that  to  make  an  entry  adverse  it  must  be 

1  See  Adams  v.  Fullam,  47  Vt.  558. 

2  Pratt  v.  Canfield,  67  Mo.  50. 

3  Babcock  v.  Utter,  32  How.  Pr.  (N.  Y.)  439;  Luce  v.  Carley,  24  Wend.  (N.  Y.) 
451;  Farsh  t.  Coon,  40  Cal.  33. 

4  See  po st,  sec.  265,  Landlord  and  Tenant;  White  v.  Hapeman,  43  Mich.  267; 
Thompson  v.  Felton,  54  Cal.  547.  A  claim  of  title  by  adverse  possession  must 
have  been  under  a  claim  of  title;  but  a  possession  originally  permissive  will 
never  become  adverse.  Adams  v.  Guice,  30  Miss.  397.  And  the  possession 
must  be  held  by  the  claimant,  or  some  one  in  privity  with  him;  if  it  is  held  by 
a  person  with  whom  the  claimant  resides,  the  possession  is  not  adverse.  See 
Snodgrass  v.  Andrews,  30  Miss.  472.  Evidence  that  an  administrator  entered 
into  the  possession  of  land  of  his  intestate,  upon  a  sale  under  a  license,  at 
which  the  land  was  struck  off  to  himself,  that  he  considered  himself  the  owner, 
had  the  land  surveyed  and  the  lines  around  it  marked,  let  a  neighbor  mow  over 
a  part  of  it,  and  cut  three  or  four  pine  timber  trees  upon  it,  during  an  occupa- 
tion of  about  three  years,  is  not  evidence  of  such  possession,  marked  by  definite 
boundaries,  as  is  necessary  to  render  it  adverse  to  the  title  of  the  legal  owner. 
Livingston  v.  Pendergast,  34  N.  H.  544.     An  administrator's  possession  of  the 

of  the  intestate,   continued   for  a  long  time  after  the  period  limited  by 

1  iw  for  closing  the  administration  and  distributing  the  property,  does  not,  by 

the  mere  lapse  of  time,  make  the  original  possession,  and  adverse  against  those 

entitled  \.<>  distribution,  or  create  any  right  or  title  in  the  administrator  under 

ante.      Harriet  v.  Swan,  18  Ark.  495.     An  administrator's  deed  may  con- 


§  26o.]  ADVERSE    POSSESSION   AND    REAL   ACTIONS.  603 

hostile  in  its  inception,1  is  subject  to  the  exception  that  a  party 
so  entering  may  disclaim,  and  from  the  time  when  notice  of 
such  disclaimer  is  brought  home  to  the  person  under  whom  he 
entered  his  possession  becomes  adverse,  but  that  he  takes  noth- 
ing by  his  previous  occupancy.2     An  entry  under  a  parol  gift  of 

firm  the  title  of  the  heirs,  and  not  be  adverse  to  it.  See  Livingston  v.  Pender- 
gast,  34  N.  H.  544. 

1  McGee  v.  Morgan,  1  A.  K.  Mar.  (Ky.)  62;  Brandt  v.  Ogden,  1  Johns.  (N. 
Y.)  156;  Jackson  v.  Parker,  3  Johns.  Cas.  (N.  Y.)  124;  Kirk  v.  Smith,  9  Wheat. 
(U.  S.)  241;  Jackson  v.  Berner,  4S  111.  203. 

5  Hamilton  v.  Wright,  30  Iowa,  486;  Huls  v.  Buntin,  47  111.  397.  An  entry  by- 
one  man  on  the  land  of  another  is  an  ouster  of  the  legal  possession  arising  from 
the  title,  or  not,  according  to  the  intention  with  which  it  is  done;  if  made 
under  claim  or  color  of  right  adverse  to  the  legal  title,  it  is  an  ouster;  other- 
wise it  is  a  mere  trespass,  as  the  intention  guides  the  entry  and  fixes  its  char- 
acter. The  doctrine  of  adverse  possession  is  taken  strictly,  and  is  not  made  out 
by  inference.  Brandts.  Ogden,  1  Johns.  (N.  V.)  156;  Jackson  v.  Sharp,  9  id.  163; 
Jackson  v.  Parker,  3  Johns.  Cas.  (N.  Y.)  124;  Gay  v.  Moffit,  2  Bibb  (Ky.)  507- 
McGee  v.  Morgan,  1  A.  K.  Mar.  (Ky.)  62.  Where  a  party  occupied  land  as  the 
tenant  of  the  owner  until  the  death  of  the  latter,  and  after  that  held  possession 
in  right  of  his  wife,  who  was  an  heir  of  the  deceased  owner,  during  which  he 
acquired  the  interest  of  several  of  the  other  heirs,  he  always  recognizing  their 
claims,  his  possession  arter  the  death  of  the  owner  was  held  not  adverse  to  the 
remaining  heirs.  Busch  v.  Huston,  75  III.  343.  See  Kille  v.  Ege,  79  Penn. 
St.  15.  The  quality  and  extent  of  the  right  acquired  by  possession  of  lands 
depends  upon  the  claim  accompanying  it;  and  to  be  adverse  there  must  be  a 
claim  of  title  in  fee.  Bedell  v.  Shaw,  59  N.  Y.  46.  The  adverse  possession  of 
a  tenant  is  notice  to  all  the  world  that  he  can  maintain  whatsoever  title  he  has 
against  all  the  world.  Jeffersonville,  etc.,  R.  Co.  v.  Oyler,  60  Ind.  383.  Where 
lands  of  a  married  woman  are  sold  by  her  husband,  the  possession  of  the 
grantee  does  not  become  adverse  to  the  wife  until  the  marriage  is  terminated. 
Stephens  v.  McCormick,  5  Bush  (Ky.)  1S1.  The  possession,  to  give  title,  must 
be  adversary;  and  it  cannot  be  adversary  unless  it  is  hostile  to  the  true  title. 
Kirk  v.  Smith,  9  Wheat.  (U.  S.)  241,  288.  Adverse  possession  sufficient  to  defeat 
the  legal  title  where  there  is  no  paper  title  must  be  hostile  in  its  inception  and 
is  not  to  be  made  out  by  inference,  but  by  clear  and  positive  proof;  and  the 
possession  must  be  such  as  to  show  clearly  that  the  party  claims  the  land  as  his 
own,  openly  and  exclusively.  Jackson  v.  Birner,  48  111.  128.  A  possession 
taken  under  a  grant  from  the  French  Canadian  government,  before  the  con- 
quest of  Canada  by  the  British,  of  land  in  the  State  of  New  York,  is  not  hostile 
to  any  private  or  individual  right,  but  is  and  must  be  considered  as  held  in  sub- 
ordination to  title  conveyed  by  a  patent  of  the  Stale.  Jackson  v.  Waters,  12 
Johns.  (N.  Y.)  365;  Jackson  v.  Ingraham,  4  id.  163.  Where  the  party  did  not 
originally  enter  into  the  possession  of  the  land  under  a  title  hostile  to  the  title  of 
the  owner,  it  will  be  intended  that  he  entered  under  his  title.  Jackson  v. 
Thomas,  16  Johns.  (N.  Y.)  293.  If  a  man  enters  on  land,  without  claim  or  color 
of  title,  and  no  privity  exists  between  him  and  the  real  owner,  he  may  afterward 
acquire  such  a  title  to  the  land  as  the  law  will,  prima  facie,  consider  a  good  title, 


604  STATUTES   OF    LIMITATION.  [CHAP.   XX. 

certain  lands,  the  extent  of  which  is  definitey  fixed,  is  adverse  to 
the  donor,  and  ripens  into  a  title  after  the  lapse  of  the  requisite 
statutory  period.1  There  are  cases  in  which  a  contrary  doctrine 
is  held ; 2  but  the  weight  of  authority,  as  well  as  common  sense 

and  from  thai  moment  his  possession  becomes  adverse.  Jackson  v.  Thomas, 
supra;  Jackson  v.  Frost,  5  Cow,  (N.  Y.)  346.  Where  a  party  is  in  possession  of 
lands  in  privity  with  the  rightful  owner,  nothing  short  of  an  open  and  explicit 
disavowal  and  disclaimer  of  a  holding  under  that  title,  and  assertion  of  title  in 
himself,  brought  home  10  the  owner,  will  satisfy  the  law.  Floyd  v.  Minlsey,  7 
Rich.  (S.  C.)  r8i.  The  doctrine  has  been  maintained  that  a  party  in  possession 
of  lands  confessedly  in  subordination  to  the  title  of  the  owner  is  incapable  in 
law  of  imparting,  by  any  act  of  his  own,  an  adverse  character  to  his  possession; 
also  that,  in  order  to  deny  or  dispute  the  title,  he  must  first  surrender  the  pos- 
session, and  place  the  owner  in  the  condition  in  which  he  stood  before  the  pos- 
session was  taken  under  him.  This  doctrine  was  supposed  to  govern  the  rights 
of  trustee  and  cestui  que  trust,  landlord  and  tenant,  vendor  and  vendee,  tenants 
in  common,  and  the  like,  and  by  it  no  lapse  of  time  would  support  a  statute 
bar  to  the  right  of  entry  by  reason  of  an  adverse  possession  between  parties 
standing  in  this  relation,  or  others  of  like  privity.  The  law,  however,  has  been 
settled  otherwise.  The  statute  does  not  operate  until  the  possession,  before 
consistent  with  the  title  of  the  real  owner,  becomes  tortious  and  wrongful  by 
the  disloyal  and  notorious  acts  of  the  tenant. 

"  Notice  of  the  disclaimer  puts  the  true  owner  under  the  same  obligation  to 
reclaim  the  possession  within  the  fixed  period,  as  if  no  trust  had  ever  existed; 
and  it  matters  not  whether  the  trust  began  by  the  voluntary  act  of  the  trustee, 
or  the  law  made  him  a  trustee  against  his  will,  as  the  result  of  his  situation  or 
conduct;  and  the  Supreme  Court  of  the  United  States,  on  writ  of  error,  sus- 
tained the  charge  of  the  judge.  Zeller  v.  Eckert,  4  How.  (U.  S.)  2S9.  This 
doctrine,  however,  does  not  impair  the  rule  that  a  possession  to  be  adverse  must 
be  hostile  in  its  inception.  In  the  cases  last  referred  lo  the  party  may  be  said 
to  have  held  possession  under  different  claims,  at  different  dates,  ihe  last  of 
which  was  hostile,  and  hence  adverse,  and  the  first  was  in  subservience  to  the 
true  title,  and  not  adverse.  The  possession  must  be  hostile  in  its  inception. 
Jackson  v.  Camp,  r  Cow.  (N.  Y.)  605.  A  possession  and  claim  of  land,  under 
an  executory  contract  of  purchase  not  adverse,  as  to  the  one  with  whom  the 
contract  is  made.  Rut  when  one  enters  under  a  contract  for  a  deed  with  one 
party,  and  aflerward  takes  a  deed  from  another  party,  his  possession  from 
this  time  seems  adverse  to  the  first  vendee,  and,  if  continued  the  statutory 
period,  will  bar  his  entry.  Jackson  v.  Johnson,  5  Cow.  (N.  Y.)  74;  Jackson  v. 
Bard,  4  Johns.  (N.  Y.)  231.  After  performance  of  a  contract  of  purchase,  and 
an  equitable  title  to  a  deed  of  the  premises  acquired,  there  is  no  good  reason 
why  the  vendee's  possession  may  not  become  adverse.  Briggs  z.  Prosser,  14 
Wend.fM.  Y.)  228. 

•Clark  7'.  Gilbert,  39  Conn.  94;  Graham  v.  Craig,  81  Penn.  St.  465:  School 
District  v.  Blakeslee,  supra;  Sumner  v.  Stephens,  6  Met.  (Mass.)  337;  Moore  v. 
Webb,  2  B.  Mon.  (Ky.)  2S2;  Outcalt  v.  Ludlow,  32  N.  J.  L.  239;  Steel  v.  John- 
son, 4  Allen  (Mass.)  425. 

'  Watson  v.  Tindal,  24  Ga.  494;  Jackson  v.  Rogers,  1  Johns.  (N.  Y.)  Cas.  36. 


■§  26l.]  ADVERSE    POSSESSION   AND    REAL   ACTIONS.  60$ 

and  the  principles  applicable  to  adverse  possession,  seem  to  sup- 
port the  rule  as  stated,  because  a  person  entering  under  such  cir- 
cumstances enters  as  owner,  and  occupies  under  a  claim  of 
ownership,  and  every  attribute  requisite  to  acquire  a  title  by 
adverse  possession  exists,  (a) 

Sec.  261.  Mixed  Possession.  —  The  rule  is,  that  where  there  is 
a  mixed  possession,  — that  is,  where  there  are  two  or  more  per- 
sons in  possession,  each  under  a  separate  conveyance  or  color  of 
title,  — the  possession  will  be  treated  as  being  in  him  who  has  the 
better  title,  upon  the  ground  that  the  seisin  is  in  him  who  has 
the  best  title,  and,  as  all  cannot  be  seised,  the  possession  follows 
the  title.1     The  rule  is  well  settled  that  title  draws  to  it  the  pos- 

1  Langdon  v.  Potter,  3  Mass.  219;  Gilman  v.  Wilson,  10  id.  151;  Cushman  v. 
Blanchard.  3  Me.  266;  Bellis  v.  Bellis,  122  Mass.  414;  Crispen  v.  Hannavan,  50 
Mo.  536.  When  two  persons  are  in  possession  of  land  at  the  same  time,  under 
different  claims  of  right,  he  has  the  seisin  in  whom  the  legal  title  is  vested. 
Winter  v.  Stevens,  9  Allen  (Mass.)  526.  If  the  holders  of  two  hostile  titles  to 
the  same  land  each  occupy  a  small  portion  within  the  exterior  boundaries  of 
the  tract,  the  constructive  possession  follows  the  true  title,  and  limitation  does 
not  run  in  favor  of  the  holder  of  the  invalid  title,  except  as  to  his  actual  posses- 
sion*. Semple  v.  Cook,  50  Cal.  26.  One  who  has  the  title  to  land,  but  fails  to 
take  actual  possession  of  it  for  twenty  years,  is  not  barred  by  the  statute, 
because  the  title  carries  with  it  the  seisin.  Mylar  v.  Hughes,  60  Mo.  105. 
Ordinarily,  the  possession  of  one  who  does  not  hold  the  true  title  can  extend 
only  to  the  land  in  actual  occupancy.  If  a  written  instrument  is  relied  upon  as 
giving  color  of  title  the  entry  and  occupation  must  be  open  and  notorious,  and 
the  true  owner  must  have  actual  or  constructive  notice  of  the  instrument  under 
which  claimant  enters  of  the  actual  possession,  and  of  extent  and  boundary  of 
the  claim,  which  can  only  be  known  by  the  paper.  In  cases  of  mixed  posses- 
sion, where  both  claimants  actually  occupy  parts,  under  adverse  claims  to  the 
whole,  the  true  title  will  prevail  against  the  one  merely  colorable,  and  the 
adverse  claimant  will  be  confined  to  the  portion  actually  occupied.  Crispen  v. 
Hannavan,  50  Mo.  536.  A  possessory  title  to  land,  though  for  less  than  twenty 
years,  is  good  against  one  who  subsequently  enters,  claiming  by  no  higher 
title.  Thoreau  v.  Pallies,  t  Allen  (Mass.)  425;  Wolcott  v.  Ely,  2  id.  338;  Cur- 
rier v.  Gale,  9  id.  522.  If  the  inhabitants  of  a  town,  through  their  committee 
survey  a  portion  of  land  lying  in  common  and  undivided,  put  up  stakes  as 
monuments,  marked   with  the  name  of  the  town,  and  afterwards,  through  one 

(a)  As  to  specific  performance  special  Noyes  v.  Johnson,  139  Mass.  436;  Con- 
provisions  of  a  contract  of  sale  may  re-  ley  v.  Finn,  171  Mass.  70.  73;  33  Am. 
quire  or  imply  that  the  purchaser  is  to  L.  R2V.  357.  Such  a  title  is  sufficient 
have  a  good  title  by  the  record,  but  it  to  support  a  petition  for  damages  to 
is  not  yet  settled  in  Massachusetts  that  land  caused  by  the  discontinuance  of  a 
in  no  case  will  a  purchaser  be  com-  highway,  or  Lv  the  taking  of  the  land 
pelled  in  equity  to  take  a  title  which  by  a  railroad  corporation.  Andrews, 
rests     on     adverse    possession.       See  Nantasket  Brach  R.  Co.,  152  Mass.  506. 


606  STATUTES   OF   LIMITATION.  [CHAP.   XX. 

session,  and  it  remains  with  the  owner  of  the  legal  title  until  he 
is  divested  of  it  by  an  actual,  adverse  possession ; l  and,  while  he 
is  in  possession  of  a  part  of  the  premises,  his  possession  is  entitled 
to  the  benefit  of  the  constructive  possession,  and  can  only  be 
ousted  by,  and  to  the  extent  of,  the  actual  occupation  of  a  mere 
intruder.2  "Although,"  says  Parsons,  C.  J.,3  there  may  be  con- 
current possession,  there  cannot  be  a  concurrent  seisin  of  land; 
and  one  only  being  seised,  the  possession  must  be  adjudged  to 
be  in  him,  because  he  has  the  best  right."  4 

Where  the  rightful  owner  is  in  the  actual  occupancy  of  a  part 

of  their  selectmen,  proceed  to  erect  a  fence  about  the  same,  which  is  removed 
by  others  before  its  completion,  this  is  enough  to  give  to  them  a  possessory 
title  to  the  same  as  against  strangers.     Simmons  v.  Nahant,  3  Allen  (Mass.)  316. 

1  Davidson  v.  Beatty,  3  H.  &  McH.  (Md.)  621;  Hammond  v.  Ridgely,  5  H.  & 
J.  (Md.)  215;  Dow  v.  Stephens,  1  D.  &  B.  (N.  C.)  5;  Hall  v.  Powel,  4  S.  &  R. 
(Penn.)  465;  Orbison  v.  Morrison,  1  Hawks  (N.  C.)  468;  Burns  v.  Swift,  2  S.  & 
R.  (Penn.)  433. 

2  Id.;   Barr  v.  Gratz,  4  Wheat.  (U.  S.)  213;  Cushman  v.  Blanchard,  3  Me.  266. 

3  Langdon  v.  Potter,  supra.  "  There  would  appear  to  be  no  clearer  principle 
of  reason  and  justice,"  said  Duncan,  J.,  in  Hall  v.  Powell,  4  S.  &  R.  (Penn.) 
465,  "  than  that  if  the  rightful  owner  is  in  possession  of  a  part  of  his  tract,  by 
himself  or  his  tenant,  he  is  in  the  constructive  and  legal  possession  and  seisin 
of  the  whole,  unless  he  is  disseised  by  actual  occupation  and  dispossession.  If 
this  were  not  so,  the  possession  by  wrong  would  be  more  favored  lhan  the 
rightful  possession.  *  *  *  In  this  kind  of  mixed  constructive  possession 
the  legal  seisin  is  according  to  the  title.  Title  draws  possession  to  the  owner. 
It  remains  until  he  is  dispossessed,  and  then  no  further  than  actual  disposses- 
sion by  a  trespasser,  who  cannot  acquire  a  constructive  possession,  which 
always  remains  with  the  owner."  See  Calk  v.  Lynn,  1  A.  K.  Mar.  (Ky.)  346; 
Jackson  v.  Vermilyea,  6  Cow.  (N.  Y.)  677;  Miller  v.  Shaw,  7  S.  &  R.  (Penn.) 
143;  Rover  v.  Benlow,  10  id.  303. 

4  Livingston  v.  Peru  Iron  Co.,  9  Wend.  (N.  Y.)  511 ;  Brimmer  v.  Proprietors  of 
Long  Wharf,  5  Pick.  (Mass.)  131;  Hunnicut  v.  Peyton,  102  U.  S.  333,  it  was  held 
that  the  possession  of  a  person  who  under  color  of  title  enters  upon  vacant 
lands  and  holds  adversely,  is  construed  to  hold  so  much  as  is  within  the  bound. 
aries  of  his  title,  and  to  that  extent  the  legal  owner  is  disseised.  But,  if  the 
legal  owner  is  in  actual  possession  of  any  part  of  the  land  whereon  the  entry  is 
made,  his  constructive  seisin  extends  to  all  not  in  fact  occupied  by  the  intruders. 
See  also  Scott  v.  Elkins,  83  N.  C.  424.  The  rule  seems  settled  thai  two  person? 
representing  separate  interests  cannot  have  constructive  possession  of  the  same- 
land  at  the  same  time,  consequently  the  benefit  of  constructive  possession  nec- 
essarily and  rightfully  belongs  to  the  legal  owner,  and  all  others  are  confined 
to  their  actual  occupancy.  Hodges  v.  Eddy,  38  Vt.  344;  Stevens  v.  Hollister, 
r-  id.  294;  Whittington  v.  Wright,  9  Ga.  23;  Codman  v.  Winslow,  10  Mass.  146. 
And  the  occupation  necessary  to  disseise  him  as  to  any  part  of  the  land  must 
be  actual,  visible,  notorious,  distinct,  and  hostile.  Robinson  v.  Lake,  14  Iowa,. 
424. 


§  261.]  ADVERSE    POSSESSION   AND    REAL   ACTIONS.  607 

of  his  land  he  is  treated  as  being  in  the  constructive  and  legal 
possession  and  seisin  of  the  whole,  unless  he  is  disseised  by  actual 
occupation  and  dispossession,  and  where  the  possession  is  mixed 
it  is  invariably  the  rule  that  the  legal  seisin  is  in  accordance  with 
the  legal  title.  In  order  to  dispossess  a  person  whose  title  covers 
an  entire  tract  of  land,  there  must  be  an  actual  disseisin  by  actual 
possession  and  occupancy  during  the  entire  statutory  period.1 

The  rule  may  be  said  to  be  that  when  a  person  enters  upon 
unoccupied  land  under  a  deed  or  title,  and  holds  adversely,  his 
possession  is  construed  to  be  coextensive  with  his  deed  or  title, 
and  the  true  owner  will  be  deemed  to  be  disseised  to  the  extent 
of  the  boundaries  described  in  that  title,  although  his  possession 
beyond  the  limits  of  his  actual  occupancy  is  only  constructive. 
But  if  the  true  owner  is  at  the  same  time  in  actual  possession  of 
a  part  of  the  land,  claiming  title  to  the  whole,  he  has  the  con- 
structive possession  of  all  the  land  not  in  the  actual  possession  of 
the  intruder,  and  this,  although  the  owner's  actual  possession  is 
not  within  the  limits  of  the  defective  title.  The  reason  for  this 
rule  is  that  both  parties  cannot  be  seised  at  the  same  time  of 
the  same  land  under  different  titles.  The  law  therefore  holds  the 
seisin  of  all  that  is  not  in  the  actual  occupancy  of  the  adverse 
party  to  be  in  him  who  has  the  better  title.2 

In  Pennsylvania,  where,  by  statute  as  well  as  by  the  courts, 
much  force  is  given  to  surveys  by  a  person  going  into  the  adverse 
possession  of  lands,  it  is  held  that  in  the  case  of  interfering  sur- 
veys the  possession  will  be  adjudged  to  be  in  him  who  has  the 
elder  title,  and  the  possession  of  a  person  holding  a  junior  survey, 
unaccompanied  by  an  actual  entry  upon  the  interference,  takes 
nothing  by  construction,  and  acquires  no  title  in  the  lands  within 
the  interference,3  following  in  this  respect  the  rule  existing  in  all 
cases  of  mixed  possession.      But  where  a  person  lays  a  new  survey 

1  Deputron  v.  Young,  134  U.  S.  241;  Hunnicutt  v.  Peyton,  102  U.  S.  333; 
Barr  v.  Gratz,  4  Wheat.  (U.  S.)  313. 

'  Clark's  Lessee  v.  Courtney,  5  Pet.  (U.  S.)  319.  In  Altemus  v.  Long.  4  Penn. 
St.  254,  it  was  held  lhat,  although  actual  possession  under  a  junior  title  of  part 
of  a  tract  of  land  which  interfered  with  an  older  grant  gave  possession  of  ihe 
whole  (o  the  holder  of  the  junior  title,  yet  that  a  subsequent  entrv  of  the  true 
owner  upon  anv  part  of  the  land  was  an  ouster  of  the  intruder  from  what  he 
had  in  constructive  possession  merely;  and  this  may  be  said  to  be  the  rule  gen- 
erally adopted. 

3  Clugijage  v.  Duncan,  1  S.  &  R.  (Penn.)  hi;  Mc Arthur  v.  Veitchen,  77  Penn. 
St.  62;  Washabaugh  v.   Entriken,  36  id.    513;  Altemus  v.    Trimble,   9  id.  232; 


6o8  STATUTES   OF   LIMITATION.  [CHAP.  XX. 

on  parts  of  older  surveys,  the  interior  lines  of  which  are  not 
marked,  and  takes  actual  possession  of  a  part  of  the  land,  and 
exercises  dominion  over  all,  and  establishes  his  lines  and  pays 
taxes  on  the  whole,  he  acquires  title  thereto.1  But  he  will  not 
acquire  possession  beyond  his  marked  lines,  even  though 
embraced  within  his  survey;2  and  if  his  survey  interferes  with 
others,  his  constructive  possession  will  be  broken  by  the  entry  of 
the  owner  of  the  warrant  upon  any  part  of  the  land  within  the 
bounds  of  his  survey;3  and  if  the  evidence  in  the  case  of  inter- 
fering surveys  is  equally  balanced,  the  preference  is  given  to  the 
oldest  survey.4 

Sec,  262.  Limits  upon  the  Operation  of  Possession  by  Construc- 
tion. —  The  doctrine  of  constructive  possession  under  color  of 
title  is  subject  to  certain  limitations,  and  cannot  be  extended  to 
whole  townships  of  land,5  nor  to  large  tracts  of  land  not  taken 
for  the   ordinary   purposes  of   cultivation  and   occupation;6  nor 

O'Hara  v.  Richardson,  46  id.  385;  Beaupland  v.  McKeen,  28  id.  124;  Hole  v. 
RtUenhouse,  25  id.  491. 

1  Nearhoff  v.  Addlernan,  31  Perm.  St.  279;  Heiser  v.  Riehle,  7  Watts  (Perm.) 
35;   Kile  v.  Brown,  5  id.  291;   Hatch  v.  Smith,  4  id.  109. 

-  Reland  v.  Eckert,  23  Penn.  St.  215. 

3Altemus  v.  Long,  4  Penn.  St.  254. 

4  Hull  v.  Wilson,  11  Penn.  Si.  515. 

5  Chandler  v.  Spear,  22  Vt.  388;  Hunter  v.  Chrisman,  6  B.  Mon.  (Ky.)463. 

*  Sharp  v.  Brandow,  15  Wend.  (N.  Y.)  397;  Chandler  v.  Spear,  supra;  Hunter 
v.  Chrisman,  supra;  People  v.  Livingston,  8  Barb.  (N.  Y.)  253.  In  ejectment, 
the  defense  of  twenty  years'  adverse  possession,  in  order  lo  countervail  a  legal 
title,  must  be  supported  by  twenty  years'  actual  occupancy,  or  a  substantial 
inclosure  of  the  premises  by  the  defendant,  or  by  him  and  those  through  whom 
he  derives  title.  A  cultivation  of  part  of  the  premises  for  that  time,  with  a 
claim  of  title  to  the  whole,  will  not  constitute  a  defense  beyond  the  portion 
actually  improved.  And  even  where  such  possession  is  under  a  deed  or  paper 
tiile,  for  a  large  tract  of  land,  and  only  a  small  part  is  improved,  with  a  claim 
of  title  to  the  whole,  this  is  not  an  adverse  possession  beyond  the  actual 
improvement.  In  Dervient  v.  Lloyd,  decided  October  term,  1820,  but  not 
reported,  where  the  defendant  had  a  deed  for  Let  4,  but  took  possession  of  Lot 
5,  adjoining,  believing  it  to  be  Lot  4,  and  claiming  it  as  such,  and  improving 
a  part,  it  was  held  that  his  adverse  possession  did  not  extend  beyond  his  actual 
improvements.  The  doctrine  of  the  constructive  adverse  possession  of  land  by 
the  cultivation  of  part  accompanied  by  a  claim  of  the  whole  under  a  deed,  does 
not  apply  to  large  tracts  of  land  not  purchased  for  the  purpose  of  actual  culti- 
vation. The  doctrine  is  in  general  applicable  to  a  single  farm  or  lot  of  land 
only,  purchased  for  the  purpose  of  actual  cultivation.  A  constructive  adverse 
possession  must  be  founded  on  a  deed  or  paper  title,  though  such  title  need  not 


§  262.]  ADVERSE    POSSESSION   AND    REAL   ACTIONS.  609 

does  it  apply  unless  the  lands  ac  ually  possessed  have  some 
necessary  connection  with  the  other  portion,  as  by  use  with  it  or 
subservience  to  it.1  The  doctrine  of  the  case  last  cited  arises 
under  the  peculiar  statute  of  New  York,  and  for  that  reason  does 
not  seem  to  accord  with  the  rule  that  a  possession  of  a  part  of 
premises  under  a  deed  purporting  to  pass  the  title  of  land,  with 
definite  boundaries,  is  extended  by  construction  to  the  whole 
tract  conveyed,  except  as  against  the  owner  of  the  legal  title, 
who  is  also  in  possession,2  unless  it  is  put  upon  the  ground,  as 
it  really  was,  that  the  land  claimed  by  construction  had  no  neces- 
sary connection  with  the  part  actually  possessed,  by  use  or  as 
being  subservient  to  it.3 

A  distinction  is  also  made  by  many  of  the  courts  between  lands 
laid  out  into  distinct  lots  and  those  which  are  not,  and  in  the 
former  case  it  is  held  that  an  entry  upon  and  possession  of  one 
lot,  under  a  conveyance  which  embraces  several,  cannot  be 
extended   by   construction   to   other  lots  not  actually  occupied. 

be  a  rightful  one.  Gilliland  v.  Woodruff,  1  Cow.  (N.  Y.)  276;  Miller  v.  Dow, 
1  Root  (Conn.)  412.  See  Ten  Eyck  v.  Richards,  6  Cow.  (N.  V.)  623;  Jackson 
v.  Woodruf,  I  Cow.  (N.  Y.)  276. 

1  In  Thompson  v.  Burhaus,  79  N.  Y.  93,  which  was  an  action  of  ejectment  to 
recover  five-sixteenths  of  four  thousand  acres  of  land,  divided  into  quarter- 
sections,  the  plaintiff,  hearing  that  the  defendants  intended  to  enter  upon  cer- 
tain lands,  caused  a  shanty  without  a  roof  to  be  erected  thereon,  also  a  barn, 
and  cut  logs  from  about  a  quarter  of  an  acre  of  the  land,  the  court  held  that  the 
recovery  must  be  limited  to  the  land  actually  occupied,  to  wit,  one  quarter  of 
an  acre,  and  that  the  circumstance  that  the  plaintiff,  after  the  action  was  com- 
menced, built  roads  and  cut  a  large  quantity  of  logs  upon  the  lot  in  dispute, 
was  immaterial  upon  the  question  of  constructive  possession.  The  court  dis- 
approved Wood  v.  Banks,  14  N.  H.  lor,  holding  that  an  entry  upon  a  lot  with 
a  view  of  taking  possession  of  it  by  spotting  the  trees  around  it,  is  a  sufficient 
possession  of  land  as  against  one  not  having  a  better  right  to  enter  upon  the 
land,  and  held  that  such  acts,  of  themselves,  or  taken  in  connection  with  the 
acts  detailed,  could  not  extend  the  plaintiff's  possession  by  construction  to  such 
spotted  lines.  Reversing  Thompson  v.  Burhaus,  15  Hun  (N.  Y.)  580.  Bare 
possession  of  land,  and  exercising  acts  of  ownership  over  it,  is  sufficient  to  put 
all  persons  on  inquiry  as  to  the  occupant's  claim.  Franklin  v.  Newsom,  53  Ga. 
580;  Morgan  v.  Taylor,  55  id.  224;  Havens  v.  Bliss,  26  N.  J.  Eq.  363.  And  this 
applies  to  levies  upon  execution,  judgment  liens,  etc.  Morgan  v.  Taylor, 
supra.  A  prior  possession,  although  short  of  the  statutory  period,  is  sufficient 
against  a  subsequent  adverse  possession,  and  enaDles  the  occupant  to  maintain 
his  claim  against  everybody  except  the  owner,  or  those  claiming  under  him. 
Martin  v.  Bousack,  61  Mo.   556;  Adams  v,  Guerard,  29  Ga.  651. 

2  Scott  v.  Elkins,  83  N.  C.  424. 

3  People  v.  Livingston,  supra;  Wilson  v.  McEwen,  7  Oreg.  87. 

[stats,  of  lim.  —  39.] 


6lO  STATUTES    OF    LIMITATION.  [CHAP.   XX. 

There  must  necessarily  be  limitations  imposed  upon  the  applica- 
tion of  the  doctrine  of  constructive  possession,  or  the  conse- 
quences might  be  disastrous;  and  the  tendency  of  the  courts  is 
to  hold,  as  previously  stated,  that  it  can  only  be  held  to  extend 
to  lands  taken  for  the  ordinary  purposes  of  cultivation  and  occu- 
pation.1 And  some  of  the  cases  hold  that  where  a  person  claims 
the  benefit  of  this  doctrine  under  color  of  title  and  by  adverse 
possession  of  a  part  of  the  land,  it  must  be  restricted  to  a  single 
farm  or  lot  for  the  purposes  of  ordinary  cultivation  or  improve- 
ment.2 Of  course,  in  those  States  where  the  statute  provides 
what  shall  be  the  effect  of  color  of  title  and  occupancy  of  a  part, 
the  statute  will  control;  but  in  New  York  and  the  other  States 
before  referred  to,  as  fixing  the  effect  of  such  colorable  title,  and 
what  shall  constitute  possession,  title  by  construction,  where 
land  is  divided  into  distinct  lots,  is  expressly  confined  to  one  lot;3 
but  where  no  such  division  is  made,  and  the  land  is  not  in  the 
actual  adverse  possession  of  a  person  who  entered  before  he  did, 
the  title  would,  by  force  of  the  statute,  embrace  all  that  was 
described  in  the  conveyance.4 

Sec.  263.  Possession  by  Mistake.  —  The  question  whether  a 
party  can  set  up  an  adverse  possession  where  lands  have  been 
occupied  by  him  by  mistake,  has  been  often  before  the  courts; 
and  the  rule  has  been  adopted  in  some  of  the  States,  that  where 
a  person  takes  possession  of  land,  and,  through  inadvertence  or 
ignorance  as  to  the  true  line,  takes  and  holds  possession  of  land 
not  covered  by  his  deed,  with  no  intention  of  claiming  or  occu- 
pying beyond  his  actual  boundaries,  such  possession  will  not  sup- 
port a  plea  of  the  statute  against  the  real  owner,5  because  in  such 
a  case  the  possession  lacks  an  essential  requisite,  viz.,  an  intention 
to  claim  adversely,  which  is  an  indispensable  ingredient  to  consti- 

1  Chandler  v.  Spear,  supra. 

2  Jackson  v.  Woodruff,  1  Cow.  (N.  Y.)  277;  Jackson  v.  Richards,  6  id.  617; 
Sharp  v.  Brandow,  15  Wend.  (N.  Y.)  597. 

3  Appendix,  New  York,  §  369. 

4  Munro  w.  Merchant,  28  N.  Y.  9. 

'Skinner  v.  Crawford,  54  Iowa,  119;  Smilh  v.  Morrow,  5  Liu.  (Ky.)  210; 
McKinney  v.  Kenny,  1  A.  K.  Mar.  (Ky.)  460;  Thompson  v.  Babb,  45  Mo.  384; 
Be  >wn  v.  Cockerell,  33  Ala.  38;  Howard  v.  Reedy,  29  Ga.  154:  Dow  v.  McKen- 
ney,  64  Me.  138;  Robinson  v.  Kline,  70  N.  Y.  147;  Hanx  v.  Battin,  68  Mo.  84; 
Grube  v.  Wells,  34  Iowa,  148. 


§263.]  ADVERSE    POSSESSION    AND    REAL   ACTIONS.  6l  I 

tute  a  disseisin.1  This  doctrine,  however,  has  been  denied  in 
Connecticut;2  and  in  all  cases  if  a  person  under  a  mistake  as  to 
the  boundaries  enters  and  occupies  land  not  embraced  in  his  title, 
claiming  it  as  his  own  for  the  requisite  statutory  period,  he 
thereby  becomes  invested  with  the  title  thereto  by  possession,3 
although  his  entry  and  possession  may  have  been  founded  upon 
a  mistake.  But  where  a  person  enters  upon  a  lot  not  covered 
by  his  title,  through  mistake,  he  takes  nothing  by  construction, 
and  is  limited  to  his  actual  occupancy.4  To  the  extent  of  his 
actual  occupancy,  which,  in  case  a  substantial  fence  in  erected 
around  it.  includes  the  whole  lot,  he  will  hold,  unless  there  is 
evidence  that  he  did  not  intend  to  do  so.5 

The  rule  may  be  said  to  be,  according  to  the  decided  cases, 
that  if  a  person  enters  upon  land  under  color  of  title,  and  takes 
possession  of  lands  not  embraced  therein,  with  the  intention  of 
possessing  the  whole,  he  is  treated  as  being  in  possession  of  the 
whole ;  but  if  he  enters  upon  a  certain  part,  with  the  intention  of 
possessing  such  part  only,  his  possession  is  confined  to  that  part.6 

1  Ross  v.  Gould,  5  Me.  204;   Brown  v.  Gay,  3  id.  126. 

s  Pearce  v.  French,  8  Conn.  439,  reviewing  Brown  v.  Gay,  3  Me.  126;  Ross  v. 
Gould,  5  Me.  204.  See  also  Swettenham  v.  Leary,  18  Hun  (N.  Y.)  284;  Cole  v. 
Parker,  70  Me.  372;  Crary  v.  Goodman,  22  N.  Y.  170;  Melvin  v.  Proprietor's, 
etc..  5  Met.  (Mass.)  33;  Seymour  v.  Carli,  Minn.  (S.  C.)  July,  1883;  Enfield  v. 
Day,  7  N.  H.  457- 

3  Ricker  v.  Hibbard.  73  Me.  300;  Abbott  v.  Abbott,  51  id.  584;  Hitchings  v. 
Morrison.  72  id.  331;  Wallbrun  v.  Ralten,  68  Mo.  164.  See  Bunce  v.  Bidwell, 
43  Mich.  542.  See  White  v  Hapeman,  43  Mich.  267.  as  to  occupancy  under  an 
agreement  relative  to  lines.  As  to  whelher  a  parly  can  set  up  an  adverse  pos- 
session to  lands  occupied  by  him  under  a  mistake  supposing  the  same  to  belong 
to  him,  when  in  point  of  fact  they  are  outside  of  his  real  claim,  the  doctrine 
evidently  is  that,  where  a  grantee,  in  taking  possession  under  his  deed,  goes 
unintentionally  and  by  mistake  beyond  his  proper  boundaries,  and  enters  upon 
and  aci  ually  occupies  and  improves  lands  not  included  in  the  deed,  claiming 
and  supposing  it  to  be  his,  this  occupation  is  to  be  deemed  adverse  within  the 
meaning  of  the  statute  of  limitations,  and,  if  continued  the  requisite  length  of 
time,  will  bar  the  right  of  the  true  owner.  See  Enfield  v.  Day,  7  N.  H  457;  Hale 
:■.  Glidden,  10  N.  H.  397;  Crary  v.  Goodman,  22  N.  Y.  170;  M'Kinney  v.  Kenny, 
1  A.  K.  Mar.  (Ky.)  460.  And  see  Smith  v.  Morrow,  5  Litt.  (Ky.)  210;  Hunter 
v.  Chrisman,  6  B.  Mon.  (Ky.)  463.  The  general  doctrine  of  the  courts  upon 
this  subject  is,  undoubtedly,  in  accordance  with  the  rule  before  stated. 

4  Napier  v.  Simpson,  1  Tenn.  453. 

5  Holton  v.  Whitney,  30  Vt.  410;  St.  Louis  University  v.  McConn,  28  Mo.  481; 
Miner  v.  Mayor,  etc.,  of  New  York,  37  N.  Y.  Superior  Ct.  171;  Robinson  v. 
Phillips,  1  T.  &  C.  (N.  Y.)  151. 

6Bodley  v.  Cogshill,  3  A.  K.   Mat.  (Ky.)  615;  Mode  v.  Loud,   64   N.   C.   433; 


6l2  STATUTES   OF    LIMITATION.  [CHAP.   XX. 

But  a  very  important  question  arises  as  to  whether  the  intention 
of  the  occupant  is  to  be  determined  from  his  acts,  or  from  his 
secret  determination  in  that  respect.  If  the  former,  then  from 
the  fact  of  exclusive  use  for  the  requisite  period  the  adverse 
character  of  the  occupancy  is  to  be  presumed,  and  the  burden  is 
upon  the  legal  owner  to  show  that  it  was  not  adverse  in  fact.  If 
the  latter,  then  the  whole  matter  rests  upon  the  integrity  of  the 
occupant.  Where  adjoining  owners  enter  into  possession  and 
actually  occupy  to  erroneous  lines,  under  an  agreement  that  the 
true  lines  may  be  aftewrards  ascertained,  no  length  of  occupancy 
to  wrong  lines  under  such  agreement  will  be  adverse,  as  the 
occupancy  is  in  recognition  of  the  owner's  title.1  But  where  two 
conterminous  owners  agree  upon  what  shall  constitute  the  true 
line,  and  occupy  up  to  it  for  the  requisite  statutory  period, 
although  it  is  not  the  true  line,  such  line  becomes  established  as 
the  true  line,  and  cannot  afterwards  be  disturbed.2 

SEC.  264.  Grantor  in  Possession.  —  Where  a  grantor  remains 
in  possession  after  a  conveyance  by  him,  his  possession  is  pre- 
sumed to  be  adverse  to  that  of  the  grantee,  where  it  has  continued 
for  a  long  time  after  the  grant  is  made,  and  is  inconsistent  with 
its  terms,  and  knowledge  of  possession  by  a  subsequent  purchaser 
affords  some  notice  of  the  grantor's  rights;3  and  by  remaining  in 
possession  for  the  full  statutory  period  adversely  to  the  grantee 
he  becomes  reinvested  with  the  title.4  (a) 

Bowman  v.  Bartlett,  3  id.  99;  Schneider  v.  Botsch,  90  111.  577.  A  person  who 
lakes  possession  under  a  claim  without  intending  to  intrude  on  another,  but 
accidentally  does  so,  acquires  no  interfering  possession.  Smith  v.  Morrow, 
supra;  M'Kinney  v.  Kenny,  supra. 

1  White  v.  Hapeman,  43  Mich.  267;  Irvine  v.  Adler,  44  Cal.  559;  Devyr  v. 
Schaefer,  55  N.  Y.  446.  So  where,  for  convenience  of  cultivation  or  the  protec- 
tion of  his  crops  or  fields,  lands  of  adjoining  owners  are  divided  by  fences  not 
placed  upon  the  true  lines,  inasmuch  as  the  occupancy  was  not  adverse  in  its 
inception,  it  cannot  become  so  by  any  length  of  possession,  unless  the  other 
owner  is  notified  of  an  intention  to  claim  adversely.  Belts  v.  Brown,  3  Mo. 
App.  20;   McNamara  v.  Seaton,  82  111.  498;  Soule   v.  Barlow,  49  Vt.  329. 

5  Tanner  v.  Kellogg,  49  Mo.  118. 
".rinkman  v.  Jones,  44  Wis.  498. 

1  Furlong  v.  Garrett,  44  Wis.  III. 

(a)  The    Mass.  of   1891,   c.   354,  pro-  and  possessed  of  such  real  estate,  and 

vi'ling  that "  notwithstanding  disseisin  shall  vest  in  the  grantee  the  rights  of 

or  a  Ivet  se  possession,  any  conveyance  entry  and  of  action  for  recovery  of  the 

!   estate  otherwise  valid  shall  be  estate   incident   to  such    title,"   is  not 

as  effecti    •    totransfer  the  title  as  if  the  unconstitutional.     McLoud  r.  Mackie, 

1   of  the  title  were  actually  seized  175  Mass.  355. 


§265.)  ADVERSE    POSSESSION    AND    REAL   ACTIONS.  613 

SEC.  265.  Landlord  and  Tenant.  —  It  is  a  well-settled  general 
rule  that  a  lessee  cannot  deny  the  title  of  his  landlord,1  and  this 

1  Miller  v.  McBrian,  14  S.  &  R.  (Perm.)  382;  Shepard  v.  Martin,  31  Mo.  492; 
Cranz  v.  Kroger,  22  III.  74;  Plumer  v.  Plumer,  30  N.  H.  558;  Walden  v.  Bodley, 
14  Pet.  (U.  S.)  156;  Tevvksbury  v.  Magraff,  33  Cal.  237;  Cody  v.  Quarterman, 
12  Ga.  386;  Atwood  v.  Mansfield,  33  111.  452.  And  especially  is  this  so  in  an 
action  for  rent.  Codman  v.  Jackson,  14  Mass.  93;  Allen  v.  Chatfield,  8  Minn. 
435;  Watson  v.  Alexander,  1  Wash.  (Va.)  340;  Perkins  v.  Governor,  Minor 
(Ala.)  352.  And  if  there  are  two  or  more  lessors,  he  cannot  deny  the  title  of 
either  of  them.  Wood  v.  Day,  7  Taunt.  646;  Delaney  v.  Fox,  1  C.  B.  N.  S. 
166;  Friend  v,  Eastabrook,  2  W.  Bl.  1152;  Langford  v.  Selmes,  3  Kay  &  J.  220; 
Beckett  v.  Bradley,  7  M.  &  G.  994.  The  rule  not  only  extends  to  the  lessee, 
but  to  his  assignee  or  undertenant.  Kluge  v.  Lachenour,  12  lred.  (N.  C.)  L. 
180;  Blackeney  v.  Ferguson,  20  Ark.  547;  McCrancy  v.  Ransom,  19  Ala  430; 
Lunsford  v.  Alexander,  4  Dev.  &  B.  (N.  C.)  L.  40;  Millhouse  v.  Patrick,  6  Rich. 
(S.  C.)  350:  Rose  v.  Davis,  n  Cal.  133.  A  stranger  even,  who  comes  into  pos- 
session through  the  tenant,  though  by  a  purchase  of  the  land,  is  subject  to  the 
rule.     Newman  v.  Mackin    21   Miss.  383;   Lockwood  v.  Walker,  3  McLean  (U. 

5  )43i;  Farley  v.  Rogers,  1  A.  K.  Mar.  (Ky.)  245;  Phillips  v.  Rothwell,  4  Bibb 
(Ky.)  33.  The  rule  applies  to  a  mortgagor  and  mortgagee,  trustee  and  cestui 
que  (rust,  and  generally  in  all  cases  where  one  obtains  possession  by  a  recog- 
nition of  the  landlord's  tille.  Willison  v.  Watkins,  3  Pet.  (U.  S.)  43.  And 
whether  the  lease  is  by  deed,  in  writing  or  oral,  or  even  though  he  is  in  under 
an  agreement  for  a  lease  merely,  or  under  a  contract  of  purchase.  Love  v. 
Edmonston,  1  lred.  (N.  C.)  L.  152;  Dubois  v.  Mitchell,  3  Dana  (Ky.)  336;  Wil- 
liams v.  Cush,  27  Ga.  507.  In  an  action  on  a  bond  for  rent  of  certain  premises 
recited  in  the  condition,  to  be  demised  by  indenture  at  a  certain  rent,  the 
defendant  is  estopped  from  saying  that  by  the  indenture  a  less  rent  than  that 
mentioned  in  the  condition  was  reserved.  Lainson  v.  Tremere,  1  Ad.  &  El. 
792.  In  an  ejectment  for  mines  against  a  member  of  a  mining  company,  it 
was  held  that  the  defendant  was  estopped  from  disputing  the  title  of  the  lessor 
of  the  plaintiff  who  had  leased  the  mines  to  the  company,  of  which  the  lessor 
was  a  partner  at  the  time  of  the  action,  but  not  at  the  time  he  granted  the  lease. 
Francis  v.  Harvey,  4  M.  &  W.  331.  The  lessee  may,  however,  show  that  his 
landlord's  title  has  expired  Neave  v.  Moss,  1  Bing.  363;  England  v.  Slade.  4 
T.  R.  682;  Jackson   v.  Ramsbotham,  3  M.  &  S.  516;  Strode  v.  Seaton,  2  C.  M. 

6  R.  728;  Downes  v.  Cooper,  2  Q.  B.  256;  Agar  v.  Young,  1  Car.  &  M.  78; 
Claridge  v.  Mackenzie,  4  M.  &  G.  143;  Leeming  v.  Skirrow,  7  Ad.  &  El.  157. 
But  where  a  defendant,  in  an  action  for  use  and  occupation,  had  occupied 
apartments  in  a  house  belonging  to  a  wife,  and  had  paid  rent  to  the  husband, 
who  subsequently,  with  the  knowledge  of  the  defendant,  granted  a  lease  of  the 
whole  house  to  the  plaintiff,  it  was  held  that,  having  occupied  with  notice  of 
the  lease,  he  could  not  impeach  its  validity,  nor  controvert  the  plaintiff's  title. 
Rennie  v.  Robinson,  1  Bing.  147.  Upon  an  information  to  set  aside  a  lease  of 
charity  lands,  it  was  held  in  chancery  that  the  lessees  could  not  dispute  the  tille 
bv  setting  up  an  adverse  title  whilst  they  retained  possession.  Atty  -Gen.  v. 
Hotham,  3  Russ.  415.  The  interest  of  a  tenant  for  life  and  a  reversioner  are 
the  same    and  therefore  a  lessee  who  has   paid  rent   to   the  first  cannot  set  up 


614  STATUTES    OF    LIMITATION.  [CHAP.   XX. 

rule  applies  whether  the  tenant  was  in  possession  before  the  lease 
was  made  or  not.1  (a)  So  long  as  he  remains  in  undisturbed  posses- 
title  in  anolher  person  as  an  answer  to  an  action  by  the  latter  after  the  death 
of  the  former  Doe  v.  Whitroe,  i  Dow  &:  Ry.  (N.  P.)  i.  A  lessee,  by  executing 
an  indenture  of  lease,  admits  a  will  under  which  it  is  recited  that  the  lease  was 
granted.  Bringloe  v.  Goodson,  5  Bing.  N.  C.  738.  A  lessee  of  tolls,  under  an 
instrument  signed  by  two  persons  as  trustees,  admits  they  are  trustees.  Wel- 
lington v.  Brown,  8  Q.  B.  169.  An  assignee  is  estopped  by  the  deed  which 
estops  his  assignor.  Taylor  v.  Needham,  2  Taunt.  278;  Barwick  v.  Thompson, 
7  T  R.  4S8;  Bryan  v.  Winwood,  1  Taunt.  208.  And  an  assignor,  by  executing 
the  assignment  in  which  the  original  lease  is  recited,  is  precluded  in  an  action 
bv  the  assignee  from  calling  upon  him  to  prove  the  lease.  Nash  v.  Turner,  1 
Esp.  217  So  an  assignee  of  a  void  lease  by  a  tenant  for  life  is  estopped  from 
disputing  the  title  of  the  remainderman,  though  his  assignment  was  after  the 
death  of  the  tenant  for  life,  and  payment  to  and  acceptance  of  rent  by  the 
remainderman,  and  with  notice  of  that  fact.  Johnson  v.  Mason,  1  Esp.  89. 
So  where  a  lease  was  granted  by  A.  and  B.  as  granting  parties,  and  reserved 
the  rent  and  right  of  re-entry  to  a  close,  it  was  held  that  the  assignee  of  the 
lessor  was  estopped  from  showing  that  A.  had  no  interest  in  the  premises. 
Parker  v.  McLaughlin,  1  Ir.  L.  R.  N.  S.  186.  In  defense  of  an  action  of  eject- 
ment it  may  be  shown  that  the  parties  under  whom  the  plaintiff  claims  had  no 
title  when  they  conveyed  to  him,  although  the  defendant  himself  claims  by  a 
conveyance  from  the  same  parties,  if  the  latter  conveyance  was  subsequent  to 
that  which  the  defendant  seeks  to  impeach.  Oliver  v.  Powell,  1  Ad.  &  EL  531. 
Where  a  lease  granted  under  a  power  contained  in  a  settlement  recited  the  title 
of  the  lessor,  and  showed  that  he  had  only  an  equitable  interest,  the  lessee  was 
held  not  to  be  estopped  from  disputing  the  title  of  the  lessor  so  disclosed  in  the 
lease.  Greenway  v.  Hart,  14  C.  B.  348.  Estoppel  in  such  cases  rests  on  the 
ground  that  the  advantage  derived  by  the  tenant  from  being  let  into  possession 
by  the  landlord,  which  would  make  it  unjust  and  inequitable  for  him  to  use 
his  portion  thus  acquired  to  undermine  or  defeat  the  landlord's  rights,  Fuller  v. 
Sweet,  30  Mich.  237;  and  hence  the  rule  that  a  tenant  cannot  set  up  a  superior 
title  acquired  by  him  until  he  has  first  surrendered  possession,  Freeman  v. 
Heath,  13  Ired.  (N.  C.)  L.  498. 

1  Richardson  v.  Harvey,  37  Ga.  224;  Patterson  v.  Hansel,  4  Bush  (Ky.)  654; 
Thayer  v.  Society,  20  Penn.  St.  60;  McConnell  v.  Bowdry,  4  T.  B.  Mon.  (Ky.) 
392;  Hockenbury  v.  Snyder,  2  W.  &  S.  (Penn.)  240.  But  in  California  the  rule 
is  otherwise,  Franklin  v.  Merida,  35  Cal.  558;  Peralta  v.  Ginochio,  47  id.  459; 
an  I  hi  New  York,  Jackson  v.  Leek,  12  Wend.  (N.  Y.)  105;  Virginia,  Alderson 
1    rrill,  15  Gratt.  (Va.)  279;  Tennessee,   Washington   v.   Conrad,  2   Humph. 

When   the   possession    is   clearly  the  landlord's  title  continues  not  only 

subservient  to  a  lease,  the  presumption  during  the  term,  but  is  presumed  to  be 

is  that  the  occupation  was  in  under  the  such,  and  tocontinue  unchanged,  until 

lease.      Bradt  ■".  Church,  no  N.  Y.  537;  twenty  years  after  the  end  of  the  term, 

ii    -'.  Wright,   38   \\  Y.  S.  701,  39  even  though  the  tenant  or  his  success- 

Peakin    v.    Peakin,  [1895]  2   I.  ors  may  claim  a  hostile  title.     Whiting 

r   St  irk    v.    Min-fil'l.  17S   Miss.  v.  Edmunds,  94  N.  Y.   309;  Church  v. 

7'.       In    Mr;w    York    tin  I'      -•■   linn   373  Schoonmaker,  115  N.  Y.  570. 

Code    of    Civil    Procedure,   tli  The  rule  as  to  landlord  and  tenant  is 

in  subordination  to  but  one  phase  of  the  general  rule  that, 


§  26$.]  ADVERSE    POSSESSION    AND    REAL    ACTIONS. 


6l5 


sion  he  is  estopped  from  attacking  the  title  under  which  he  entered,1 

(Tenn.)  562;  and  in  South  Carolina,  Givens  v.  Mollyneaux,  4  Rich.  (S.  C.)  590, 
it  was  held  lhat  a  person  in  possession  is  not  estopped  from  subsequently  dis- 
claiming holding  under  such  title,  if  the  original  entry  is  not  under  the  person 
whose  title  is  acknowledged.  And  this  is  so  in  all  the  States,  if  such  acknowl- 
edgment was  induced  by  fraud,  Gleim  v.  Rise,  6  Watts  (Penn.)  44;  Jackson  v. 
Harper,  5  Wend.  (N.  Y.)  246;  Byrne  v.  Beeson,  supra;  or  was  the  result  of  mis- 
take or  misapprehension,  Miller  v.  Williams,  15  Gratt.  <Va.)  213;  Swift  v.  Dean, 
11  Vt.  323;  Cramer  v.  Carlisle  Bank,  2  Grant's  Cas.  (Penn.)  267;  Smith  v. 
McCurdy,  3  Phila.  (Penn.)  4S8.  The  rule  adopted  in  California  is  certainly 
just,  and  does  not  seem  to  trench  upon  the  general  rule. 

1  Paquetel  v.  Gauche,  17  La.  Ann.  8g.  He  cannot  controvert  the  title  of  him 
under  whom  he  holds,  and  whose  title  he  has  recognized,  Bremer  i>.  Bigelow,  8 
Kan.  497;  Burnett  v.  Rich,  45  Ga.  211;  Jackson  v.  Wheldon,  1  E.  D.  Sm.  (N. 
Y.  C.  P.)  141;  Ingraham  v.  Baldwin,  9  N.  Y.  45;  Stout  v.  Merrill,  35  Iowa,  47; 
even  by  taking  a  lease  from  another  after  his  term  is  ended,  Jackson  v.  Stiles, 
1  Cow.  (N.  Y.)  575;  Jackson  v.  Hinman,  10  Johns.  (N.  Y.)  292;  Phelps  v.  Tay- 
lor, 23  La.  An.  585:  Simmons  v.  Robertson,  27  Ark.  527.  If  he  denies  the  title, 
the  landlord  may,  at  his  election,  treat  it  as  a  disseisin.  It  is  in  law  a  termina- 
tion of  the  tenancy,  and  equivalent  to  notice  to  quit.  Hall  v.  Davey,  10  Vt. 
593;  Currier  v.  Earl,  13  Me.  216;  Tillotson  v.  Doe,  5  Ala.  407;  Stearns  v.  God- 
frey, 10  Me.  158;  Fusselman  v.  Worthington,  14  111.  135.  In  an  action  of  eject- 
ment or  for  rent,  the  defendant,  by  admitting  that  he  is  the  plaintiff's  tenant, 
admits  the  plaintiff's  title.  Millhaller  v.  Jones,  7  Ind.  715;  Russell  v.  Erwin, 
38  Ala.  40;  Ingraham  v.  Baldwin,  9  N.  Y.  45.  The  fact  that  the  lease  is  void 
does  not  change  the  rule,  or  enable  the  tenant  to  dispute  the  title;  but,  after 
the  relation  has  ceased,  his  right  to  do  so  is  not  impaired  because  he  neglected 
to  do  so  before.  Bryne  v.  Beeson,  1  Dougl.  (Mich.)  179;  Heath  v.  Williams,  25 
Me.  209;  King  v.  Murray,  6  Ired.  (N.  C.)  L.  62;  Ankeny  v.  Pierce,  1  111.  202. 
He  cannot  set  up  a  title  acquired  by  adverse  use  while  he  was  occupying  either 
as  tenant  or  licensee.  Corning  i/.  Trey  Nail  Factory,  34  Barb.  (N.  Y.)  485; 
Brown  v.  Keller,  32  111.  151;  Bryne  v.  Beeson,  1  Dougl.  (Mich.)  179;  Hatch  v. 
Pendergast  15  Md.  251.  In  order  to  gain  such  a  title  he  must  first  disclaim. 
"Walden   v.   Bodley,  14  Pet.  (U.   S.)  156;   Duke   v.   Harper,  6  Yerg.  (Tenn.)  280; 


to  set  the  statute  in  motion,  the  relation 
of  the  parties  must  be  hostile;  so  long 
as  their  interests  are  common,  or  their 
relations  fiduciary,  the  statute  does 
not  besjin  to  run,  and  this  is  equally 
true  in  the  case  of  landlord  and  tenant, 
guardian  and  ward,  vendor  and  vendee, 
tenants  in  common,  or  trustee  and 
cestui  que  trust.  New  Orleans  v. 
Warner,  175  U.  S.  120,  130;  Frish- 
muth  v.  Farmers'  Loan  &  Trust  Co., 
95  Fed.  Rep.  5,  10;  Bissing  v.  Smith, 
33  N.  Y.  S.  123.  As  to  adverse  pos- 
session between  husband  and  wife. 
see  Gafford  v.  Strauss  (89  Ala  283),  18 
Am.  St.  Rep.  ill,  and  n. ;  1  Am.  and 
Eng.  Encyc.  of  Law  (2d  ed.),  p.  820. 
As  to  tenants  from  year  to  year,   see 


Molony  v.  Molony,  [1894]  2  I.  R.  1; 
Jackson  v.  M'Master,  28  L.  R.  Ir.  176. 
As  to  tenants  at  will  and  at  sufferance, 
see  Peakin  v.  Peakin.  [1895]  2  I.  R. 
359;   Lyebrook  v.  Hall,  73  Miss.  509. 

When  a  lessor,  claiming  land  under 
a  deed,  leases  it  the  lessee's  possession 
is  his  possession  to  the  farthest  bound- 
aries contained  in  the  deed.  Worth  v. 
Simmons,  121  N.  C.  357,  361;  Coch- 
ran v.  Linville  Imp.  Co.,  127  N.  C. 
386. 

If  intending  lessors  are  unable 
legally  to  get  possession  of  their  land, 
the  statute  of  limitations  will  not  apply. 
Warren  v.  Murphv,  [1894]  2  Q.  B  648; 
Eccl.  Com'rs  v.  Treemer,  [1893]  1  Ch. 
166. 


6l6  STATUTES   OF   LIMITATION.  [CHAP.   XX. 

unless    his    entry    was    induced    by    the    fraud    of    the    landlord 

and  surrender  the  property  before  he  will  be  permitted  to  assert  it,  Reed  v. 
Shepley,  6  Vt.  602;  Tompkins  v.  Snow,  63  Barb.  (N.  Y.)  525;  Hershey  v.  Clark, 
27  Ark.  525;  Brown  v.  Keller,  supra;  Ryerson  v.  Eldred,  18  Mich.  12;  Greeno 
v.  Munson,  9  Vt.  37;  Moshier  v.  Redding,  12  Me.  478.  Statements  of  his  own 
title  will  not  be  evidence  unless  brought  home  to  the  landlord.  Ingram  v. 
Little,  14  Ga.  173.  And  a  tenant  at  will  will  not  be  permitted  to  set  up  an 
inconsistent  title  without  surrender  or  eviction  by  the  owner  of  a  paramount 
i:  lie  or  its  equivalent.  Town  v.  Butterfield,  97  Mass.  105.  He  cannot  avail 
himself  of  the  purchase  of  an  outstanding  title  to  defeat  the  title  of  his  land- 
lord. Clemm  v.  Wilcox,  15  Ark.  102;  Russell  v.  Titus,  3  Grant's  Cas.  (Penn.) 
295;  Elliott  v.  Smith,  23  Penn.  St.  131.  See  Gallagher  v.  Bennett,  38  Tex.  291. 
In  order  to  create  this  estoppel,  the  relation  of  landlord  and  tenant  must  exist. 
It  does  not  apply  to  a  tortfeasor  or  one  who  has  not  recognized  the  landlord's 
title.  But  if  he  has  distinctly  recognized  the  landlord's  title,  so  that  he  can  be 
said  to  hold  under  him,  or  in  subserviency  to  his  title,  the  rule  applies.  The 
best  evidence  of  such  recognition  is  the  payment  of  rent  or  the  taking  of  a 
lease;  but  these  ate  not  indispensable.  Hood  v.  Mathias,  21  Mo.  308;  Plumer  v. 
Plumer,  30  N.  H.  558;  Morse  v.  Roberts,  2  Cal.  515.  In  Maine,  it  is  held  that 
there  must  be  an  actual  surrender  of  the  premises,  and  that  notice  to  the  land- 
lord is  not  sufficient.  Longfellow  v.  Longfellow,  61  Me.  590.  If  a  tenant  holds 
over  after  the  termination  of  his  lease,  he  cannot,  by  surrendering  part  of  the 
premises,  acquire  a  right  to  dispute  the  title  of  the  landlord  to  the  remainder. 
Longfellow  v.  Longfellow,  54  Me.  240;  Stoops  v.  Delvin,  16  Mo.  162.  A  sub- 
tenant cannot  dispute  the  title  of  his  lessor  or  of  his  assignee.  Stagg  v.  Eureka 
Tanning  Co.,  56  Me.  317;  Dunshee  v.  Grundy,  15  Gray  (Mass.)  314;  Earle  v. 
Hale,  31  Ark.  470;  Prevat  v.  Lawrence,  51  N.  Y.  219.  A  tenant  at  sufferance  is 
bound  by  this  estoppel.  Griffin  v.  Sheffield,  38  Miss.  359.  Nor  can  a  lessee  of 
a  tenant  at  will  dispute  the  title  of  his  lessor  or  of  the  landlord.  Hilbourn 
v.  Fogg,  99  Mass.  11.  Nor  can  the  lessee  for  life  at  law  set  up  a  conveyance 
by  the  intestate  to  a  third  person,  of  which  he  was  ignorant  when  they  leased 
to  him.  Hawes  v.  Shaw,  100  Mass.  187.  A  tenant  contracting  to  pay  the  taxes 
upon  the  premises  cannot,  by  permitting  the  lands  to  be  sold  for  taxes,  and 
purchasing  them  at  such  sale,  acquire  any  title  thereto  as  against  his  landlord. 
Carithers  v.  Weaver,  7  Kan.  no.  But  a  tenant  at  will  may  at  any  time  abandon 
his  tenancy,  and  then  take  the  same  property  by  purchase  from  another,  so  as 
to  avail  himself  of  the  statute  of  limitations;  but  the  abandonment  must  be 
brought  home  to  the  knowledge  of  his  landlord.  Hudson  v.  Wheeler,  34  Tex. 
35^.  A  person  who  was  in  possession  of  land  when  the  lease  was  made  is 
estopped  from  setting  up  that  the  lessor  holds  the  title  merely  as  his  trustee. 
Lucas  v.  Brooks,  18  Wall.  (U.  S.)  436.  For  instances  where,  according  to  the 
rule  in  California,  a  tenant  may  set  up  a  paramount  title  when  he  was  in  pos- 
session when  the  lease  was  made,  see  Peralta  v.  Ginochio,  47  Cal.  459;  Hollo- 
way  v.  Galliac,  id.  474;  Franklin  v.  Mereda,  35  Cal.  558;  Tewksbury  v.  Magroff. 
33  Cal.  237.  The  rule  only  extends  to  the  lessor  and  his  privies  in  blood  or 
estate;  as  against  a  stranger,  the  tenant  may  set  up  title  in  himself  or  a  third 
person.  Cole  v.  Maxfield,  13  Minn.  235.  A  person  in  possession  of  premises 
crhii  h  are  sold  or  set  ofi  upon  an  execution  against  him,  becomes  so  far  a  quasi 
precluded  from  disputing  the  title  of  the  purchaser  upon  execu- 


§  265.]  ADVERSE    POSSESSION   AND    REAL   ACTIONS.  617 

or  by  a  mistake  in  the  execution  of  the  lease,1  or  unless  the 
lease  was  made  for  purposes  in  violation  of  law,  or  of  improve- 
ments upon  public  lands  specially  reserved  from  sale  so  that  the 
lessor's  possession  was  unlawful.2  The  fact  that  the  lease  is 
void,3  or  that  the  lessor  had  no  title  whatever,4  or  that  the  title- 
was  really  in  the  lessee,  and  he  was  ignorant  of  the  fact  when  the 

tion  while  he  is  in  possession,  but  not  if  he  is  not  in  possession.  Wood  v. 
Turner,  7  Humph.  (Tenn.)  517.  A  person  who  enters  as  sub-tenant,  although 
he  subsequently  acquires  a  perfect  title  to  the  lands,  cannot  set  up  such  title 
against  his  lessor  without  first  surrendering  possession  to  him.  He  must  give 
up  the  advantage  which  he  derived  under  the  tenancy  by  being  let  into  posses- 
sion, before  the  estoppel  is  removed.  Callender  v.  Sherman,  5  Ired.  (N.  C.)  L. 
711:  Freeman  v.  Heath,  13  id.  498;  Millhouse  v.  Patrick,  6  Rich.  (S.  C.)  350. 
The  rule  applies  where  a  party  takes  an  undivided  half  of  premises  as  pur- 
chaser, and  the  other  half  as  tenant.  In  such  a  case  he  is  estopped  from  deny- 
ing the  title  of  his  lessor  to  the  half  leased  to  him.  Clark  v.  Crego,  47  Barb. 
(N.  Y.)  599. 

1  Lively  v.  Ball,  2  Mon.  (Ky.)  53.  See  Mays  v.  Dwight,  84  Penn.  St.  462; 
Hamilton  v.  Marsden,  6  Binn.  (Penn  )45;  Brown  v.  Dysenger,  1  Rawle  (Penn.) 
40S;  Baskin  v.  Seechrist,  6  Penn.  St.  154.  If  a  person  falsely  represents  him- 
self to  be  the  owner  of  premises,  and  thus  induces  a  person  to  take  a  lease  from 
him,  the  tenant  is  not  estopped  from  denying  such  person's  title.  Gleim  v. 
Rise,  6  Watts  (Penn.)  44.  See  Jenckes  v.  Cook,  9  R.  I.  520.  See  Gallagher  v. 
Bennett,  38  Tex.  291;  Alderson  v.  Miller,  15  Gratt.  (Va.)  279;  Pearce  v.  Nix,  34 
Ala.  183;  Alderson  v.  Miller,  15  Gratt.  (Va.)  279.  If  it  is  shown  that  the  tenant 
was  induced  to  attorn  to  the  plaintiff  as  landlord,  in  consequence  of  the  plain- 
tiff's fraud  or  misrepresentation,  he  is  not  estopped.  Schnetz  v.  Arratt,  32  Mo. 
172;  Tison  v.  Yawn,  15  Ga.  491.  Indeed,  the  rule  may  be  said  lo  be  that  the 
tenant  is  never  estopped  from  showing  lhat  the  tenancy  was  induced  by  fraud, 
misrepresentation,  or  misapprehension,  Swift  v.  Dean,  11  Vt.  233,  Cramer  v. 
Carlisle  Bank,  2  Grant's  Cas.  (Penn.)  267;  Smith  v.  McCurdy,  3  Phila.  (Penn.) 
488;  or  otherwise  unfairly  obtained.  Brown  v.  Dyserger,  supra;  Isaac  v. 
Clarke,  2  Gill  (Md.)  1;  Miller  v.  Bonsadon,  9  Ala.  317.  See  Satterlee  v.  Mat- 
thewson,  13  S.  &  R.  (Penn.)  133. 

s  Dupas  v.  Wassell,  1  Dill.  (U.  S  )  213. 

3  Bryne  v.  Beeson,  1  Dougl.  (Mich.)  179;  Heath  v.  Williams,  25  Me.  209; 
King  v.  Murray,  6  Ired.  (N.  C.)  L.  62.  See  Shriver  v.  Shriver,  86  N.  Y.  575; 
Miner  v.  Beekman,  50  N.   Y.  337. 

4  Bowdish  v.  Dubuque,  38  Iowa,  341.  A  tenant  under  a  lease  from  one  hav- 
ing possession  and  control  of  the  premises  but  no  title  lo  them  (which  lease 
contains  a  clause  thai,  in  case  lessors  should  cease  to  control  or  own  the  prop- 
erty, no  rent  should  be  paid  unless  their  successors  should  in  writing  confirm 
the  lease),  by  holding  under  and  paying  rent  to  the  successive  assignees  of  the 
owner,  is  estopped  from  denying  that  they  are  assignees  of  his  original  lessor, 
and  continues  bound  to  pay  rent  to  them  in  that  character,  or  as  having,  by  the 
instruments  of  confirmation,  become  new  lessors.  Whalin  v.  White,  25  N.  Y. 
462;  Flanders  v.  Train,  13  Wis.  596;  Jackson  v.  Wheedon,  1  E.  D.  Sm.  (N.  Y. 
C.  P.)  141. 


6l8  STATUTES   OF    LIMITATION.  [CHAP.   XX. 

lease  was  made,  will  not  change  the  rule.1  Nor  is  the  rule 
changed  although  the  lease  was  made  to  defraud  the  landlord's 
creditors.2  But,  in  order  to  subject  a  party  to  this  rule,  the  rela- 
tion of  landlord  and  tenant  must  exist.  By  this  it  is  not  meant 
that  the  party  must  be  in  under  a  lease,  or  that  he  must  pay 
rent;  but  if  he  is  in  possession  by  the  permission  of  the  owner, 
and  has  recognized  his  title  in  any  way,  it  is  enough.3  A  tenant 
in  law,  as  a  tenant  by  dower,  elegit,  or  curtesy,  is  estopped 
wherever  the  person  from  whom  their  title  is  derived  would  have 
been ; 4  and  the  rule  also  applies  to  a  person  who  goes  in  under 
an  agreement  for  a  lease,  or  under  a  contract  for  the  purchase  of 
the  premises,  or  under  any  arrangement  which  operates  as  a 
recognition  of  the  landlord's  title,  and  as  holding  under,  or  in 
subserviency  to  it.5  When  the  estate  which  the  landlord  held 
vests  in  the  lessee,  whether  by  purchase  from  the  lessor  or  by 
purchase  under  valid  legal  proceedings,  the  tenant  may  set  up 
this  title  in  defense  to  any  action  brought  against  him  by  the 
lessor,  either  to  recover  possession  of  the  premises,  or  to  recover 
after-accruing  rent;6  and  indeed  in  all  cases  it  is  competent  for 
the  tenant  to  show  that  the  landlord's  title  has  terminated,  as, 
that  the  premises  have  been  sold  under  foreclosure  proceedings,7 

1  In  Baker  v.  Noll,  59  Mo.  265,  the  tenant  took  a  lease  of  the  plaintiff  who 
held  the  lands  as  trustee  of  the  tenant's  wife,  but  of  which  fact  the  tenant  was 
ignorant  when  the  lease  was  made.  The  court  held  that  he  was  estopped.  In 
Abbott  v.  Cromartie,  72  N.  C.  292,  the  tenant  was,  in  fact,  entilled  to  the  lands 
as  a  homestead,  but  he  was  ignorant  of  the  fact  when  the  lease  was  made.  The 
court  held  that  he  was  estopped.  But  contra,  see  Cain  v.  Gimon,  36  Ala.  168; 
Shultz  v.  Elliott,  11  Humph.  (Tenn.)  183. 

2Steen  v.  Wadsworth,  17  Vt.  297. 

3  See  Downer  v.  Ford,  16  Cal.  345;  Ward  v.  Mcintosh,  12  Ohio  St.  231;  Flan- 
ders v.  Train,  13  Wis.  596;  Wyoming,  etc.,  Co.  v.  Price,  81  Penn.  St.  156. 

4  Love  v.  Dennis,  Harp.  (S.  C.)  70;  Bufferlow  v.  Newsom,  1  Dev.  (N.  C.)  L. 
208;  Gorham  v.  Brenon,  2  id.  174.  The  tenant  of  a  tenant  by  dower  is  estopped 
from  disputing  the  title  of  the  intestate.  Clarke  v.  Clarke,  51  Ala.  498.  A 
tenant  in  possession  under  a  lessor  whose  lands  are  sold  on  execution  may, 
however,  set  up  the  title  of  the  purchaser,  in  defense  to  an  action  for  the  rent 
an    ruing  after  the  sale.      Lancashire  v.  Mason,  75  N.  C.  455. 

1  Dubois  v.  Mitchell,  3  Dana  (Ky.)  336;  Love  v.  Edmoston,  1  I  red.  (N.  C.)L.  152. 

*  Ryder  v,  Manzell,  66  Me.  197;  Shields  v.  Lozear,  34  N.  J.  L.  496,  3  Am.  Rep.  256. 

1  It  is  competent  for  him  to  show  that  they  were  sold   upon  a  mortgage  given 

to  himself,  and  that  he  became  the  purchaser  at  such  sale,  or  that  the  condition 

which  the  mortgage  to  him  was  gi^en  is  broken,  Shields  v.  Lozear,  supra; 

l'<i|i<-        Bit^gs,  9  !'».  .V  C.  245;   Watson  v.  Lane,  11  Exch.  769;  or  where  his  title 

has  been  extinguished   in   any  manner  subsequent  to  the  making  of  the  lease. 


§  265.]  ADVERSE    POSSESSION   AND    REAL   ACTIONS.  619 

under  execution,1  or  for  taxes,2  or  indeed  that  the  title  of  the 
landlord  has,  from  any  cause,  expired.3  So  a  tenant  is  not 
estopped  when  he  has  been  induced  to  take  a  lease  from  th?  land- 
lord by  his  fraud  or  misrepresentation,4  or  under  a  misapprehen- 
sion or  mistake.5  Neither  is  he  estopped  from  setting  up  a 
paramount  title  in  another,  where  he  has  been  evicted,  or  a  judg- 
ment of  eviction  has  been  obtained  against  him,6  nor  when  the 
payment  of  rent  by  him  was  merely  gratuitous.7     The  estoppel 

Camp  r.  Camp,  5  Conn.  291;  Jackson  r.  Rowland,  6  Wend.  (N.  Y.)  666; 
Wheelock  v.  Warschauer,  21  Cal.  309;  Randolph  v.  Carlton,  8  Ala.  606; 
McDevitt  v.  Sullivan,  8  Cal.  592;  Devacht  v.  Newsom,  3  Ohio.  57;  Walls  v. 
Mason,  5  111.  84;  Lawrence  v.  Miller,  1  Sandf.  (N.  Y.)  516;  Tilghman  v.  Little, 
13  111.  239;  Ryers  v.  Farwell,  9  Barb.  (N.  Y.)  615;  Kinney  v.  Doe,  8  Blackf. 
(Ind.)  350;  Hoag  v.  Hoag,  35  N.  Y.  469;  Casey  v.  Gregory,  13  B.  Mon.  (Ky.) 
346;  Gregory  v.  Crab,  2  id.  234;  Homer  v.  Leeds,  25  N.  J.  L.  106;  Hintz  v. 
Thomas,  7  Md.  346;  Giles  z:  Ebsworth,  10  id.  333;  Howell  v.  Ashmore,  22  N.  J. 
L.  261;  Wolf  v.  Johnson,  30  Miss.  513;  England  v.  Slade,  4  Johns.  (N.  Y.)  682; 
Russell  ?■  Allard,  18  N.  H.  222;  Purtz  v.  Cuester,  41  Mo.  447.  After  a  judg- 
ment of  eviction  against  the  tenant,  he  may,  without  the  landlord's  consent, 
attorn  to  the  successful  party,  although  he  has  not  actually  been  evicted,  Moffat 
v.  Strong,  9  Bos.  (N.  Y.  Sup.  Ct.)  57;  Lunsford  v.  Turner,  5  J.  J.  Mar.  (Ky.) 
104;  Foster  v.  Morris,  3  A.  K.  Mar.  (Ky.)  609;  or  he  may  show  that  the  premises 
have  been  sold  under  a  mortgage,  execution,  or  for  taxes,  Shields  v.  Lozear,  34 
N.  J.  L.  496;  Doe  v.  Ashmore,  261.  And  if  the  sale  is  subsequently  set  aside, 
he  may 'dispute  the  title  of  the  purchasers  and  attorn  to  his  original  landlord. 
Miller  v.  Williams,  15  Gralt.  CVa.)  213.  This  is  upon  the  principle  that  if  one 
in  possession,  under  claim  of  title,  is.  by  fraud  or  mistake,  induced  to  believe 
that  another  has  a  better  title,  and  thereupon  to  take  a  lease  from  him,  the  ten- 
ant will  not  be  estopped.     Alderson  v.  Miller,  16  Gratt.  (Va.)  279. 

1  Doe  v.  Ashmore,  22  N.  J.  L.  162.  And  he  may  set  up  the  title  of  the  pur- 
chaser under  execution  against  the  landlord  in  any  action  brought  by  the  land- 
lord, for  matters  accruing  or  occurring  after  such  sale,  Lancashire  v.  Mason, 
75  N.  C.  455.  c 

2  If  the  lessee  buys  in  the  whole  or  a  part  of  the  lessor's  title  at  a  tax  or  execu- 
tion sale,  or  by  private  purchase,  it  is  a  proportionate  defense  to  a  suit  for  rent 
or  ejectment.  Nellis  v.  Lathrop,  22  Wend.  (N.  Y.)  121;  Elliott  v.  Smith,  23 
Penn.  St.  131;  George  v.  Putney,  4  Cush.  (Mass.)  358;  Bettison  v.  Budd,  17 
Ark.  546;  Carnley  v.  Stanfield,  10  Tex.  546.  But  if  the  tenant  contracted 
to  pay  the  taxes,  he  cannot  set  up  a  tax  title  against  the  landlord.  Carithers 
v.  Weaver,  7  Kan.  no. 

3  Doe  v.  Seaton,  2  Cr.  M.  &  R.  728. 

4Gleim  v.  Rise,  6  Watts  (Penn.)  44;  Swift  v.  Dean,  n  Vt.  323;  Baskin  v. 
Seechrist,  6  Penn.  St.  154. 

6Schultz    v.  Elliott,  11   Humph.  (Tenn.)  183. 

s  Moff att  v.  Strong,  9  Bos.  (N.  Y.  Sup.  Ct.)  57;  Foster  v.  Morris,  3  A.  K.  Mar. 
.(Ky.)  609;  Fletcher  v.  M'Farlane,  12  Mass.  43;  Allen  r.  Thayer,  17  id.  299. 

'Shelton  v.  Carrol,  16  Ala.  ij.8 


620  STATUTES   OF   LIMITATION.  [CHAP.   XX. 

only  exists  during  his  tenancy,  express  or  implied.  After  that  is 
ended,  whether  by  surrender  or  otherwise,  he  may  set  up  title  in 
himself  or  in  a  third  person,1  and,  as  a  tenant  for  years  holding 
over  after  his  term  is  treated  as  holding  upon  the  terms  of  the 
former  lease,  he  remains  subject  to  the  estoppel.2 

Sec.  266.  Co-tenants.  —  Prima  facie,  the  possession  of  one 
tenant  in  common  is  the  possession  of  all,3  consequently  acts 
done  upon  the  common  property  by  one  co-tenant,  which  if  done 
by  a  stranger  to  the  title  would  amount  to  a  disseisin,  are  suscepti- 
ble of  explanation  consistently  with  the  true  title ;  and  mere  acts 
of  ownership  exercised  by  one  co-tenant  are  not,  of  themselves, 
necessarily  acts  of  disseisin,  nor  do  they  warrant  a  presumption 
of  ouster.4  But  if  one  tenant  in  common  enters  upon  the  whole 
land,  and  takes  the  entire  profits,  claiming  and  holding  exclu- 
sively for  the  full  statutory  period,  an  actual  ouster  of  his  co-ten- 
ants may  be  presumed.5  But  the  mere  pernancy  of  the  profits 
for  that  period,  of  itself,  does  not  amount  to  conclusive  evidence 
of  an  ouster,6  because   that  is  susceptible  of   explanation    con- 

1  Page  v.  Kinsman,  43  N.  H.  328;  Carpenter  v.  Thompson,  3  id.  204.  If  there 
is  no  tenancy,  there  is  no  estoppel.  Hughes  v.  Clarksville,  6  Pet.  (U.  S.)  369; 
Foust  7/.  Trice,  8  Jones  (N.  C.)  L.  290;   Head  v.  Head,  7  id.  620. 

'Stoops  v.  Delain,  16  Mo.  162;  Longfellow  v.  Longfellow,  54  Me.  240;  Wilson 
v.  James,  79  N.  C.  349;  Wood's  Landlord  and  Tenant,  368  et  seq. 

3  Peaceable  v.  Reed,  1  East,  568;  Doe  v.  Hellings,  11  id.  49;  Atkyns  v. 
Horde,  1  Burr,  in;  Ewer  v.  Lowell,  9  Gray  (Mass.)  76;  Higbee  v.  Rice,  5 
Mass.  351;  Whiting  v.  Dewey,  15  Pick.  (Mass.)  428;  Jackson  v.  Brink,  5  Cow. 
(N.  Y.)  484;  Strong  v.  Cotter,  13  Minn.  82;  Story  v.  Saunders,  8  Humph. 
(Tenn.)  663.  The  possession  of  one  tenant  in  common  is  never  presumed  to  be 
adverse,  but  the  contrary.  Berthold  v.  Fox,  13  Minn.  501;  Owen  v.  Morton, 
24  Cal.  373;  Smajl  v.  Clifford,  28  Me.  213;  White  v.  Wilkinson,  2  Grant  (Penn.) 
249;  Buckmasterw.  Needham,  22  Vt.  617;  Challefoux  v.  Ducharme,  4  Wis.  554; 
Cunningham  v.  Robertson,  1  Swan  (Tenn.)  138;  Van  Bibber  v.  Frazer,  17  Md. 
136.  But  from  a  long  period  of  exclusive  occupation  disseisin  may  be  presumed. 
Purcell  v.  Wilson,  4  Gratt.  (Va.)  16. 

4  Parker  v.  Locks  &  Canals,  3  Met.  (Mass.)  9;  Bolton  v.  Hamilton,  2  W.  &  S. 
(Penn.)  294;  Calhoun  v.  Cook,  9  Penn.  St.  226;  Brown  v.  McCoy,  2  W.  &  S. 
(Penn.)  307,  n;  Phillips  v.  Gregg,  10  Watts  (Penn.)  15S;  Hart  v.  Gregg,  10  id. 
185;   Keyser  v.  Evans,  30  Penn.  St.  507;   Forward  v.  Deetz,  32  id.  69. 

ii  derick  v.  Gray,  10  S.  &  R.  (Penn.)  182;   Susquehanna,  etc.,  R.   R.  Co.  v. 
6l    Penn.  St.  328;   Rider  v.  Maul,  46  id.  376;   Mehaffy  v.  Dobbs,  9  Watts 
(I'   rin.i  363;   Workman  v,  Guthrie,  29  Penn.  St.  495;  Law  v.  Patterson,  1  W.  & 
S    1 1'enn.)  184;  Cummings  v.  Wyman,  10  Mass.  464. 

'  Higbee  v.  Rice,  5  Mass.  351;  Bolton  v.  Hamilton,  2  W.  &  S.  (Penn.)  294; 
Calhoun  v.  Cook,   supra.     But  pernancy  of  the   profits  for  a  long   period,   as 


§  266. J  ADVERSE    POSSESSION    AND    REAL   ACTIONS.  621 

sistently  with  his  rights  as  co-tenant.  In  order  to  set  the  statute 
in  motion  in  his  favor,  he  must  absolutely  deny  the  title  of  his 
.co-tenants,1  or  by  other  notorious  acts  indicate  his  intention  to 
claim  and  hold  the  estate  exclusively.  There  must  not  only  be 
an  exclusive  possession,  but  the  possession  must  be  under  a  claim 
of  title  to  the  whole  estate,  either  brought  home  to  the  knowl- 
edge of  the  other  tenant,  or  so  notorious  that  his  knowledge  of 
such  adverse  claim  can  be  presumed.2  And  the  evidence  must  be 
much  stronger  than  would  be  required  to  establish  a  title  by  pos- 
session by  a  stranger.3  What  constitutes  an  actual  ouster  is  a 
mixed  question  of  law  and  fact.  If  one  co-tenant  goes  into  pos- 
session of  the  entire  estate  under  a  notorious  claim  of  title  to  the 
whole,  and  resists  or  denies  the  right  of  his  co-tenant  to  enter 
and  persistently  and  notoriously  excludes  him  from  the  enjoy- 
ment of  the  premises,  this  is  an  ouster.4  So,  too,  if  one  co-ten- 
ant erects  a  building  upon  the  estate  without  the  knowledge  or 
consent  of  the  other,  and  occupies  it  exclusively,  and  does,  upon 
the  estate,  acts  such  as  clearly  and  unequivocally  indicate  a  claim 
of  exclusive  ownership,  this  is  an  ouster  of  his  co-tenant.5  So  it 
has  been  held  that  the  erection  of  a  dam  upon  the  sole  estate  of 
one  tenant,  which  floods  the  lands  of  the  joint  estate,  is  an 
ouster.6  But  a  mere  cutting  of  trees  and  converting  them  to  his 
own  use,7  or  cutting  the  grass  and  removing  fences,8  the  plowing 
up  of  crops,9  the  removal  of  fixtures,10  or,  indeed,  the  doing  of 
any  acts  which  may  be  referred  to  his  right,  are  not  regarded  as 

forty  years,  is  evidence  from  which  an  adverse  claim  may  be  inferred. 
Chambers  v    Pleak,  6  Dana  (Ky.)  426. 

1  Kathau  v.  Rockwell,  16  Hun  (N.  Y.)  96. 

2  Van  Bibber  v.  Frazer,  17  Md.  136;  Andres  v.  Andres,  9  Ired.  (N.  C.)  214; 
Forward  v.  Deetz,  32  Penn.  St.  6g;  Crane  v.  Robinson,  21  Conn.  379;  I.arman 
v.  Hoey,  13  B.  Mon.  (Ky.)436;  Colburn  v.  Mason,  25  Me.  434;  Gill  v.  Fauntle- 
roy,  8  B.  Mon.  (Ky.)  177;  Abercrombie  v.  Baldwin,  15  Ala.  363;  Peck  v.  Ward, 
18  Penn.  St.  506;  Meredith  v.  Andres,  7  Ired.  (N.  C.)  5;  Johnson  v.  Tuolumne, 
18  Ala.  50:   Newall  v.  Woodruff,  30  Conn.  492. 

3  Barrett  v.  Coburn.  3  Met   (Ky.)  510;   Newell  v.  Woodruff,  30  Conn.  492. 
"Thomas  v.  Pickering,  13  Me.  337;  Forward  v.  Dietz,  32  Penn.  St.  69. 

5  Bennett  v.  Clemence,6  Allen  (Mass.)  10. 

6  Jones  v.  Wetherbee,  4  Strob.  (S.  C.)  50. 
1  Wait  v.  Richardson,  33  Vt.  190. 

8  Booth  v.  Adams,  11  Vt.  156. 

9  Harman  v.  Gardiner,  Hemp.  (S.  C.)  430. 

10  Gibson  v.  Vaughn,  2  Bailey  (S.  C.)  389;  McPherson  v.  Seguine,  3  Dev.  (N. 

C)  153. 


622  STATUTES   OF   LIMITATION.  [CHAP.    XX. 

amounting  to  an  actual  expulsion,  or  as  an  ouster.1  So,  if  one 
defendant  executes  a  mortgage  of  the  entire  estate,2  or  a  deed  of 
his  interest,  it  is  not  an  ouster.3  But  a  conveyance  by  one  of  the 
entire  estate,4  or  devising  it  by  will,5  or,  indeed,  any  act  which 
clearly  indicates  an  intention  on  his  part  to  usurp  the  entire  estate 
to  himself,  is  an  ouster;6  and  the  question  as  to  whether  his  acts 
accrue  to  the  benefit  of  the  joint  estate,  or  as  an  ouster  and  dis- 
seisin of  the  others,  is  a  question  for  the  jury.7(tf) 

SEC.  267.  What  Possession  will  sustain  Constructive  Possession. 
—  In  all  cases,  in  order  to  entitle  a  person  to  the  benefit  of  the 
doctrine  of  constructive  possession  who  claims  under  a  color  of 
title,  there  must  be  an  entry  upon,  and  an  actual  possession  of, 
some  part  of  the  land  covered  by  his  title,  with  the  palpable 
intention  to  claim  and  hold  the  land  as  his  own;8  and  an  actual 
possession  of  adjoining  land  will  have  no  effect  to  entitle  a  person 

1  Booth  v.  Adams,  supra. 

'  Wilson  v.  Callinshaw,  13  Penn.  St.  276;  Harman  v.  Hannah,  9  Gratt.  (Va.)i46. 

3  Porter  v.  Hill,  9  Mass.  34;  Roberts  v.  Morgan,  30  Vt.  319.  Where  one  ten- 
ant does  an  act  amounting  to  a  destruction  of  a  portion  of  the  estate,  or  a  seri- 
ous injury  thereto,  his  co-tenant  may  have  an  action  on  the  case  against  him 
therefor,  but  cannot  maintain  trespass,  Anders  v.  Meredith,  4  D.  &  B.  (N.  C.) 
199;  Odiorne  v.  Lyford,  9  N.  H.  502;  Gt.  Falls  Co.  v.  Worcester,  15  id.  412; 
Cowles  v.  Garrelt,  30  Ala.  341;  Gynther  v.  Pettijohn,  6  Ired.  (N.  C.)  388;  as 
for  the  erection  of  a  dam  on  his  own  estate  which  floods  the  joint  estate,  Jones 
v.  Wetherbee,  4  Strob.  (S.  C.)  50;  Odiorne  v.  Lyford,  supra;  Gt.  Falls  Co.  v. 
Worcester,  supra;  Hutchinson  v.  Chase,  39  Me.  508;  or  for  diverting  water 
from  a  mill  owned  by  two  in  common,  Pillsbury  v.  Moore,  44  Me.  144. 

4  Marcy  v.  Marcy,  6  Met.  (Mass.)  360;  Kittredge  v.  Locks  &  Canals,  17  Pick. 
(Mass.)  246;   Bieelow  v.  Jones,  10  id.  161. 

&  Miller  v.  Miller,  60  Penn.  St.  16. 

6  Cummings  v.  Wyman,  10  Mass.  464. 

1  Lefavour  v.  Homan,  3  Allen  (Mass.)  354;  Parker  v.  Locks  &  Canals,  supra; 
Cummings  v.  Wyman,  supra. 

8  Altemus  v.  Campbell,  9  Watts  (Penn.)  28.  An  adverse  possession  of  land 
cannot  be  extended  by  construction  beyond  the  limits  of  the  land  actually  cov- 
ered by  the  conveyance.  Pope  v.  Hanmer,  74  N.  Y.  240;  Enfield  v.  Day,  7  N. 
H.  457;  Hale  v.  Glidden,  10  id.  397.     As  to  any  lands  outside  the  limits  of  the 

(a)  As   a  deed   from   one    tenant   in  a  disseisor  is  good,  although  the  title, 

1  ommon  of  a  part  of  the  common  estate  but  for  the    disseisin,    is    in    him  and 

bj   metes  and  bounds  is  not  absolutely  another  as  tenants  in  common.      Frost 

void,    but     may    be    good    by    way   of  v.   Courtis,    172   Mass.   401,    404.     See 

pel   against    the   grantor   and   his  Old  South  Society  v.  Wainwright,  156 

id    is  v.. In!  against  all   persons  Mass.    115,    120;     Kimball    v.    Com'th 

unles     avoided    by   ihe    co-tenants,    a  Ave.  Ry.  Co.,  173  Mass.  152;  Robinson 

•  iking  effect  only  as  th:-  deed  of  v.  Robinson,  id.  233. 


§  267.]         ADVERSE    POSSESSION    AND    REAL  ACTIONS.  623 

to  the  benefits  of  a  constructive  possession.1  There  must  in  all 
cases  be  an  actual  entry  upon  the"  land  animo  clamandi  posses- 
sionem, and  a  visible,  notorious,  distinct,  and  hostile  possession  of 
a  part  of  it,  continued  for  the  entire  statutory  period.2  The  kind 
of  possession  which  will  be  sufficient  must  depend  largely  upon  the 
character  of  the  land,  the  locality,  and  the  purposes  to  which  it 
can  be  put.  Thus,  an  entry  upon  woodland  by  a  person  holding 
a  deed,  and  clearing  off  a  part  of  it,  with  an  intention  of  soon 
making  other  improvements,  has  been  held  sufficient.3  In 
Maine,4  the  doctrine  was  asserted  at  an  early  day,  that,  in  the 
case  of  "  wild  and  uncultivated  land,  the  jury  were  not  to  expect 
the  same  evidence  of  occupancy  which  a  cultivated  farm  would 
present  to  them."  And  where  the  land  is  so  situated  as  not  to 
admit  of  any  permanent  useful  improvement,  neither  residence, 

conveyance,  an  actual  possession  must  be  shown.  Pope  v.  Hanmer,  supra;  even 
though  the  occupant  went  into  the  possession  of  a  wrong  lot  and  improved  it 
under  a  mistake,  Hale  v.  Glidden,  supra;  Johnson  v.  Lloyd,  (N.  Y.)  MSS.  case 
cited  in  Pope  v.  Hanmer,  supra. 

1  Hale  v.  Glidden,  supra;  Pope  v.  Hanmer,  supra;  Johnson  v.  Lloyd,  supra; 
Tritt  v.  Roberts,  64  Ga.  156;  Peyton  v.  Barton,  53  Tex.  298;  Davidson  v. 
Beatty,  3  H.  &  McH.  (Md.)  621.  A.,  the  owner  of  a  tract  of  land,  sold  the  west- 
ern half  to  B.,  by  metes  and  bounds.  The  whole  tract  was  subsequently  sold 
under  a  void  judgment  for  taxes,  and  C.  became  the  purchaser.  He  placed  a 
tenant  on  the  eastern  half,  who  remained  in  possession  seven  years,  claiming 
the  whole  tract  by  virlue  of  the  tax  sale.  There  was  no  visible  open  possession 
of  the  western  half  by  C.  It  was  held  that  the  statute  did  not  bar  the  right  of 
B.,  and  that  the  constructive  possession  of  B.  was  not  disturbed  by  C.'s  occu- 
pation of  the  eastern  half.  Stewart  v.  Harris,  9  Humph.  (Tenn.)  714.  The 
occupation  of  pine  land  by  annually  making  turpentine  on  it  is  such  an  actual 
possession  as  will  oust  a  constructive  possession  by  one  claiming  merely  under 
a  superior  paper  title.  Bynum  v.  Carter,  4  Ired.  (N.  C.)  310.  Where  a  party 
is  in  actual  possession,  and  has  a  right  to  possession  under  a  legal  title  which 
is  not  adverse,  but  claims  the  possession  under  another  title  which  is  adverse, 
the  possession  will  not  in  law  be  deemed  adverse.  Nichols  v.  Reynolds,  1  R.  I. 
30.  In  Tritt  v.  Roberts,  64  Ga.  156,  it  was  held  that  possession  of  a  part  of  one 
lot,  embraced  in  the  same  deed  with  other  distinct  lots,  could  not  be  extended 
by  construction  to  the  other  lots,  unless  the  deed  was  on  record,  and  that  pre- 
scription as  to  those  lots  would  only  begin  to  run  from  the  date  of  the  record. 

'Stanley  v.  White,  14  East,  332;  Doe  v.  Campbell,  10  Johns.  (N.  Y.)  477; 
Ewing  v.  Burnet,  n  Pel.  (U.  S.)  41;  De  Lany  v.  Mulcher,  47  Iowa,  445;  Scott 
v.  Delany   87  111.  146. 

3  Scott  v.  Delany,  87  111.  146.     See  Thompson  v.  Burhaus,  79  N.  Y.  97. 

4  Robinson  v.  Swett,  3  Me.  316.  See  Miller  v.  L.  I.  R.  R.  Co.,  71  N.  Y.  380; 
Wheeler  v.  Spinola,  54  id.  377;  Miller  v.  Downing,  id.  631;  Argotsinger  v. 
Vines,  82  N.  Y.  308. 


624  STATUTES    OF    LIMITATION.  [CHAP.    XX. 

cultivation,  nor  actual  occupation  are  necessary  where  the  con- 
tinued claim  to  the  premises  is  evidenced  by  notorious  acts  of 
ownership,  such  as  a  person  would  not  exercise  over  lands  which 
he  did  not  own.1 

It  is  not  necessary  that  the  occupation  should  be  such  that  a 
mere  stranger,  passing  by  the  land,  would  know  that  some  one 
was  asserting  title  to  a  dominion  over  it.  It  is  not  necessary 
that  the  land  be  cleared  or  fenced,  or  that  any  building  be  put 
upon  it.2 

The  possession  of  land  cannot  be  more  than  the  exercise  of 
exclusive  dominion  over  it.  This  possession  or  dominion  cannot 
be  the  same  or  uniform  in  every  case,  and  there  may  be  degrees 
even  in  the  exclusiveness  of  the  exercise  of  ownership.  The 
owner  cannot  literally  occupy  a.  whole  tract;  he  cannot  stand 
upon  all  of  it  or  hold  it  in  his  hands.  His  possession  must  be 
indicated  by  other  acts,  and  these  acts  must  vary  according  to 
the  circumstances  of  each  case.  When  one  enters  upon  land 
under  color  of  title  and  with  claim  of  ownership,  any  acts  of  user 
which  are  continuous  and  which  indicate  unequivocally  to  the 
neighborhood  in  which  the  land  is  situated  that  it  is  appropriated 
exclusively  to  his  individual  use  and  ownership,  such  entry  is 
sufficient  to  render  the  possession  adverse.3 

An  indispensable  requisite  to  the  acquisition  of  title  under 
statutes  of  limitation  is  that  the  possession  must  be  both  adverse 
and  continuous.4 

The  ground  upon  which  the  statute  proceeds  is,  that  the  owner 
of  the  legal  title  has  been  ousted  of  his  possession,  and  has 
acquiesced  therein;  and  the  acts  necessary  to  sustain  this  pre- 
sumption must  be  of  such  a  visible,  notorious,  and  hostile 
character  as  to  operate  as  a  notice  to  all  parties  that  the  person  is 

1  Baldwin,  J.,  in  Ewing  v.  Burnet,  n  Pet.  (U.  S.)  41;  Ellicott  v.  Pearl,  10  id. 
412;  Moss  v.  Scott,  2  Dana  (Ky.)  275.  In  Ewing  v.  Burnett,  11  Pet.  (U.  S.)  41, 
the  exclusive  and  notorious  use  of  a  valuable  sand-bank  was  held  sufficient  to 
tfive  title  by  adverse  possession,  and  that  the  erection  of  a  fence  or  the  making 
of  improvements  was  not  necessary,  but  that  any  acts  under  a  claim  of  right, 
visible  and  notorious,  are  sufficient,  and  the  nature  of  the  acts  required  "must 
rid  upon  the  uses  to  which  the  land  is  adapted. 
*  Ellicott  v.  Pearl,  10  Pet.  (U.  S.)  412;  Davis  v.  Easley,  13  111.  192;  Brooks  v. 
Bruyn,  24  id.  372;  Booth  v.  Small,  25  Iowa,  177;  Langworthy  v.  Myers,  4  id. 
1  -     Ewing  v.  Burnett,  1 1  Pet.  1 1 

(.,  in  Murray  t.  Hudson,  o.  Western  Rep.  (Mich.)  347. 
it   v.  Xilson,  8u  Mo.  536. 


§  267.]  ADVERSE    POSSESSION   AND    REAL   ACTIONS.  625 

in  possession  as  owner.1  And  it  would  seem,  under  the  theory- 
relative  to  the  acquisition  of  such  title  by  constructive  possession, 
that  the  extent  of  his  claim  must  be  clearly  indicated  by  some  of 
the  insignia  of  boundaries,  as  marked  trees  upon  the  lines,  the 
erection  of  a  fence,  the  establishment  of  corners  by  stakes  and 
stones,  or  some  other  equally  decisive  evidence  of  the  limits  of 
his  claim,  or  that  his  deed  must  accurately  describe  the  premises 
and  be  recorded;  as  in  no  other  way  could  publicity  be  given  to 
the  limits  of  the  possession,  or  the  extent  of  the  claim  be  ascer- 
tained.2 Actual  residence  by  the  claimant  or  his  tenant  upon  the 
land  is  not  necessary  to  continue  possession  or  occupancy.  It  is 
only  necessary  that  the  claimant  should  maintain  continuous 
dominion  over  the  land,  manifested  by  continuous  acts  of  owner- 
ship according  to  the  purposes  for  which  the  land  is  adapted,  and 
according  to  the  custom  of  the  country.3     Thus,  the  open,  notori- 

1  Blood  v.  Wood,  1  Met.  (Mass.)  528.  Thompson  v.  Burhaus,  79  N.  Y.  101, 
questions  the  doctrine  of  Wood  v.  Banks,  14  N.  H.  101,  that  an  entry  upon  a 
lot,  with  a  view  of  taking  possession  of  it  under  a  claim  of  title,  and  marking 
the  lines  of  it  by  spotting  the  trees  around  it,  is  a  sufficient  possession  against 
one  who  has  no  better  right.  Passing  around  land  or  over  it,  asserting  title 
ever  so  loud,  does  not  give  possession;  and  in  Lynde  v.  Williams,  68  Mo.  360, 
it  was  held  that  posting  a  notice  upon  land,  that  a  certain  person  claimed  it, 
did  not  amount  to  a  possessory  act.  Although  in  one  case  it  was  said  that  the 
claimant  "  must  keep  his  flag  flying,"  Stephens  v.  Leach,  19  Penn.  St.  265,  yet 
it  is  hardly  believed  that  that  would  be  sufficient,  if  it  was  simply  nailed  to  a 
tree  on  the  land.  Either  the  claimant  or  his  agent  would  be  required  to  sfay 
on  the  land,  and  wave  it  continuously,  until  the  statutory  period  has  elapsed. 

5  In  Tritt  v.  Roberts,  supra,  it  was  held  that  the  record  of  ihe  conveyance  is 
necessary  in  some  cases  to  support  constructive  possession.  Doe  v.  Campbell, 
10  Johns.  (N.  Y.)  477.  See  Riley  v.  Jameson,  3  N.  H.  23.  See  Corning  v.  Troy 
Iron  Co.,  34  Barb.  (N.  Y.)  529. 

3  Coleman  v.  Billings,  89  111.  183;  Thompson  v.  Burhaus,  supra;  Ford  v.  Wil- 
son,  35  Miss.  490;  Miller  v.  Piatt,  5  Duer  (N.  Y.)  272.  Where  the  entry  on  land 
was  originally  in  a  fiduciary  character  as  agent,  it  requires  some  decisive  act 
or  declaration  to  render  the  possession  adverse.  Giving  receipts  for  rent  in 
one's  own  name  is  not  such  an  act.  Martin  v.  Jackson,  27  Penn.  St.  504. 
Whether  possession  is  adversary  or  not  depends  on  the  circumstances  under 
which  it  was  taken  and  held,  especially  the  animus  of  the  party  holding;  and 
whether  with  a  claim  of  title,  or  without  any  such  claim,  is  a  question  of  fact 
for  the  jury.  Early  v.  Garland,  13  Gratt.  (Va.)  1.  If  acts  of  ownership  and 
possession  relied  upon  as  proof  of  a  title  by  disseisin  and  not  of  a  nature  to 
work  a  disseisin,  they  cannot  be  made  more  effectual  for  that  purpose,  bv  proof 
that  they  were  known  and  not  objected  to  by  the  legal  owner.  Cook  v.  Bab- 
cock,  11  Cush.  (Mass.)  206.  An  obstruction  of  part  of  a  space,  over  all  which 
A.  claims  a  right  of  way  bv  adverse  user,  does  not  defeat  A.'s  right  to  pass  over 

I  STATS.   OF  LIM.  — 40] 


626  STATUTES   OF    LIMITATION.  [CHAP.    XX. 

ous,  and  exclusive  use  of  a  valuable  sand  bank  for  the  purpose  of 
getting  sand  is  held  sufficient.1  So,  surveying  the  land  and 
setting  up  stakes  to  indicate  the  lines  and  corners,  and  the  erec- 
tion of  a  wharf  and  boat  sheds.2  The  mere  payment  of  taxes 
upon  land,  while  it  indicates  a  claim  of  ownership,  and  the  extent 
of  the  claim,  does  not  of  itself  amount  to  possession,  nor  operate 
as  a  substitute  therefor.3  In  Illinois,  however,  by  statute,  an 
entry  under  color  of  title  and  payment  of  taxes  for  seven  years 
is  sufficient  to  perfect  a  title  under  the  statute;  and,  indeed,  it 
would  doubtless  be  held  in  all  the  States  that  if  the  owner  has 
abandoned  his  land,  and  permits  another,  under  color  of  title  for 
the  requisite  statutory  period,  without  objection,  and  without 
entry  upon  the  land,  to  pay  the  taxes  thereon,  that  circumstance, 
accompanied  by  proof  of  an  actual  entry  made  by  the  claimant, 
and  possession  of  some  part  of  the  premises,  and  the  establish- 
ment of  well-defined  boundaries,  would  be  treated  as  such  actual 
possession  as  would  overcome  the  constructive  possession  of  the 
owner  of  the  legal  title.4  Thus,  where  a  person  entered  upon 
lands  under  color  of  title,  made  a  survey,  marked  his  lines,  paid 
taxes,  and  used  a  part  of  the  woodland  for  erecting  a  saw-mill,  it 
was  held  that  he,  by  such  acts,  acquired  a  title  by  adverse  pos- 
session co-extensive  with  his  boundaries.5     But  such  constructive 

the  way  as  reduced  in  width.  Putnam  v.  Bowker,  n  Cush.  (Mass.)  542. 
Occupation  by  the  grantee  in  a  deed,  with  the  consent  of  the  grantor,  of  prem- 
ises more  extensive  than  those  conveyed  to  him  by  the  deed,  for  a  less  period 
than  that  required  by  the  statute  to  bar  all  claims,  does  not  give  the  grantee 
any  title  as  to  the  land  not  included  in  the  deed.  Clark  v.  Baird,  9  N.  Y.  183. 
The  burden  of  proving  an  adverse  possession  is  on  the  party  claiming  the  ease- 
ment. Hammond  v.  Zehner,  23  Barb.  (N.  Y.)  473.  Possession  taken  under 
color  of  title  is  in  law  possession  of  all  the  land  described  in  the  deed  confer- 
ring such  color  of  title,  lying  in  the  same  tract;  but,  in  order  to  make  such  pos- 
session effectual  to  the  party  claiming  title  under  it,  it  must  be  open,  visible, 
exclusive,  and  notorious,  calculated  to  give  notice  to  the  owner  of  an  adverse 
claim  thereby  to  the  land.      Little  v.  Downing,  37  N.  H.  355. 

1  Ewing  v.  Burnet,  11  Pet.  (U.  S.)  41. 

5  Congdon  v.  Morgan,  14  S.  C.  587. 

'Cornelius  v.  Giberson,  25  N.  J.  L.  1;  Sorber  v.  Willing,  10  Watts  (Penn.) 
141;  Reed  v.  Field,  15  Vt.  672;  Naglee  v.  Albright,  4  Whart.  (Pcnn.)  291;  Chap- 
man v.  Templeton,  53  Mo.  463;  Hockenbury  v.  Snyder,  2  W.  &  S.  (Penn.)  240; 
Paine  v.  ilutchins,  49  Vt.  314  Taken  in  connection  with  other  acts,  the  pay- 
ment of  taxes  is  a  part  proper  to  go  to  the  jury,  as  tending  to  establish  adverse 
possession.      Draper  v.  Shoot,  25  Mo.  197. 

4  F.'rrar  v.  Fessenden,  39  N.  H.  268;  Royer  v.  Benlow,  10  S.  &  R.  (Penn.)  303. 

'  Heiser  V.  Richie,  7    Watts  (Penn.)  35.     See  also  Shally  v.  Stahl,  2  W.  N.  C. 


§  267.]  ADVERSE   POSSESSION   AND    REAL   ACTIONS.  627 

possession  may  be  restricted  and  reduced  by  acts  and  declarations 
of  the  occupant,  that  he  does  not  claim  title  equally  extensive 
with  his  survey.  The  record  of  a  survey  affords  no  evidence  of 
title  or  possession,  nor  does  the  marking  of  trees  around  the  land 
as  surveyed ; 1  but  it  is  evidence  of  the  claim  of  the  person  for 
whom  it  was  made ; 2  and  the  same  is  true  as  to  the  payment  of 
taxes  upon  land.  That  circumstance  of  itself,  however,  has  no 
tendency  to  prove  an  adverse  possession  of  the  land,  but  it  is  evi- 
dence of  an  adverse  claim  thereto ; 3  and  even  in  Illinois,  although 
the  payment  of  taxes  for  seven  years  under  color  of  title  gives 
title  under  certain  circumstances,  yet  it  is  held  that  unless  it  is 
shown  that  the  lands  were  vacant  and  unoccupied  during  that 
period  the  claimant  must  prove  actual  occupancy  by  himself  or 
others  in  his  behalf.4 

Actual  residence,  the  erection  of  fences  around  the  lot,  the 
making  of  improvements  upon  the  land,  and  the  use  of  it  for  any 
purpose  to  which  such  land  is  usually  devoted  in  the  section  of 
country  in  which  the  land  is  situated,  continuously  for  the  full 
statutory  period,  will  be  sufficient;  but  no  definite  rule  can  be 
given  which  will  be  applicable  in  all  cases,  as  the  question  must 
necessarily  depend  upon  such  a  variety  of  circumstances  that  the 
same  state  of  facts  which  would  be  held  sufficient  in  one  case 
would  be  held  insufficient  in  another.  In  the  case  of  entry  and 
possession  under  a  conveyance,   whether  recorded   or  not,5  the 

(Penn.)  418;  Thompson  v.  Milford,  7  Watts  (Penn.)  442;  McCall  v.  Coover,  4  W. 
&  S.  (Penn.)  151;   Paine  v.  Hutchins,  49  Vt.  314. 

■'  Oatman  v.  Fowler,  43  Vt.  462. 

*  Oatman  v.  Fowler,  supra. 

3  Thompson  v.  Burhaus,  79  N.  Y.  101.  But  the  uninterrupted  payment  of 
taxes  for  a  long  period,  as  in  this  case  twenty-four  years,  was  held  to  afford 
strong  evidence  of  a  claim  of  right.     Ewing  v.  Burnet,  11   Pet.  (U.  S.)  41. 

4  Whitney  v.  Stevens,  89  111.  53. 

5  When  a  man  enters  on,  improves,  fences,  and  occupies  part  of  another  man's 
tract  of  land,  and  has  the  boundaries  of  his  claim  surveyed  and  marked,  includ- 
ing woodland  not  inclosed,  and  for  twenty-one  years  openly  and  exclusively 
uses  the  woodland  as  his  own,  in  connection  with  his  improvements,  as  farmers 
ordinarily  do,  this  is  not  a  constructive,  but  an  actual,  possession  of  the  wood- 
land, and  excludes  the  constructive  possession  usually  attributed  to  the  title, 
and  to  the  owner's  actual  possession  of  the  rest  of  his  tract.  Ament  v.  Wolf, 
33  Penn  St.  331;  Wolf  v.  Ament,  1  Grant's  Cases  (Penn.)  150.  Actual  posses- 
sion or  cultivation  of  part  of  a  tract  of  land,  use  of  the  uninclosed  portions  as 
woodland,  and  payment  of  taxes  on  the  whole  for  the  statutory  period,  may 
constitute  title  to  the  whole.     Murphy  v.  Springer,  1  Grant's  Cases  (Penn.)  73. 


628  STATUTES    OF    LIMITATION.  [CHAP.    XX. 

conveyance  itself,  and  entry  under  it,  is  sufficient  evidence  of  the 
adverse  character  of  the  entry  and  possession ;  and  if  the  deed  is 
recorded,  it  is  also  evidence  of  the  extent  of  the  claim  and  of 
its  notoriety;  but,  except  in  the  case  of  gores  and  other  vacant 
lands,  it  affords  no  evidence  of  possession,  actual  or  constructive, 
upon  which  a  title  can  be  predicated  by  the  lapse  of  the  statu- 
tory  period.1     The  constructive    possession    which    is   extended 

So  in  cases  of  interference  of  lines.  "  inclosing  and  cultivating  pari  of  the  inter- 
ference, and  using  the  residue  as  adjacent  woodland  is  customarily  enjoyed, 
is  actual  possession  of  the  whole."  In  such  cases  the  possession  of  the  real 
owner,  be  it  actual  or  constructive,  is  ousted  by  inclosing  and  cultivating  part 
of  the  interference,  and  using  the  residue  as  adjacent  woodland  is  customarily 
enjoyed;  and  after  the  statutory  period  the  title  is  chaged.  Ament  v.  Wolf,  I 
Grant's  Cases  (Perm.)  518;  Beedy  v.  Dine,  31  Penn.  St.  13;  Nearhoff  v.  Addle- 
man,  id.  279.  If  the  possession  of  a  trespasser  is  interrupted,  the  possession 
of  the  real  owner  is  renewed,  and  that  without  actual  entry.  Cornelius  v.  Giber- 
son,  25  N.  J.  L.  1.  See  Byrne  v.  Lowry,  19  Ga.  27.  Entering  upon  land  at 
intervals,  cutting  down  trees,  deadening  timber,  and  fencing  in  a  cow-pen,  nor 
even  the  renting  of  a  small  part  of  the  lit,  does  not  necessarily  draw  after  it 
the  possession  of  the  whole  lot,  even  if  it  can  be  said  to  be  sufficient  as  to  any 
part  of  it.  Denham  v.  Holeman,  26  Ga.  182.  That  merely  cutting  wood  is  not 
enough,  see  Keller  v.  Dillon,  26  Ga.  701;  Long  v.  Young,  28  id.  130.  The  occa- 
sional cutting  of  wood  and  boiling  sugar  on  the  land  has  been  held  not  suffi- 
cient. Washabaugh  v.  Entriken,  34  Penn.  St.  74.  But  see  Green  v.  Kellum, 
23  id.  254,  where  such  acts  under  color  of  title  were  held  sufficient.  To  sup- 
port a  title  by  adverse  possession,  it  suffices  that  visible  and  notorious  acts  of 
ownership  are  exercised  over  the  premises  for  the  time  limited  by  the  statute, 
and  the  kind  of  acts  required  depends  upon  the  nature  and  situation  of  the 
premises;  less  evidence  will  be  required  when  the  entry  was  under  a  claim  of 
right  than  when  it  is  a  mere  intrusion.  Draper  v.  Shoot,  25  Mo.  197.  The 
possession  of  a  vendee  after  the  purchase-money  is  due  is  adverse,  and  if  he 
holds  possession  for  ihe  requisite  period,  claiming  under  the  purchase,  as  evi- 
denced by  the  bond,  it  is  adverse.  Ray  v.  Goodman,  1  Sneed  (Tenn.)  586. 
(Totten,  J.,  dissented.) 

1  In  Taylor  v.  Public  Hall  Co.,  35  Conn.  430,  the  court  held  that  a  deed, 
although  it  conveyed  no  title,  characterized  the  possession,  and  rendered  it 
adverse  against  all  the  world  from  its  date.  An  entry  upon  land  under  a  deed, 
and  possession  by  leasing  parts  of  it,  and  occasionally  cutting  wood  upon  it 
during  the  period  required  by  the  statute,  although  for  a  few  years  no  acts  of 
ownership  were  exercised,  is  a  sufficient  possession  to  constitute  title.  Men- 
kens v.  Ovenhouse,  22  Mo.  70.  See  Beaupland  v.  McKeen,  2S  Penn.  St.  124; 
Watts  v.  Griswold,  20  Ga.  732.  Where  two  parties  are  in  joint  possession  of 
land,  mutually  conceding  each  other's  title  to  respective  moieties,  limitation 
1  innot  run  in  favor  of  the  one  having  legal  title  to  the  whole.  McCammon  v. 
Petit,  3  Sneed  (Tenn.)  242.  One  who  enters  as  tenant  for  life  does  not  hold 
adversely  to  the  remainderman.  Turman  v.  White,  14  B.  Mon.  (Ky.)  560. 
Where  one  is  in  possession,  claiming  an  adverse  title,  with  only  the  naked  pos- 


§  267.]  ADVERSE    POSSESSION   AND    REAL   ACTIONS.  629 

over  lands  covered  by  his  deed,  as  an  incident  to  actual  possession 
of  a  part  of  the  land,  cannot  be  extended  to  lands  adjoining 
which  are  not  embraced  within  the  conveyance;1  but  if  adjoin- 
ing owners  recognize  a  particular  line  as  the  true  line  between 
their  lands,  when  in  fact  it  is  not,  such  acquiescence  for  the 
requisite  period  is  binding  upon  them,  if  either  had  a  continued, 
although  only  a  constructive  possession  of  his  lot,  as  such  mutual 
recognition  of  the  line  operates  as  a  sufficient  color  of  title.2  In 
order  to  defeat  the  right  of  the  public  in  the  use  of  lands  which 
have  been  dedicated  for  public  use  as  a  common  or  highway,  the 
lands  must  not  only  be  enclosed,  but  also  must  be  used  adversely 
to  the  public  for  the  full  statutory  period.3 

session  to  evidence  his  claim,  his  title  is  limited  to  that  portion  over  which  he 
exercises  palpable  and  continuous  ownership.  Bell  z:  Longworth,  6  Ind.  273. 
It  is  against  the  policy  of  the  statutes  of  fraud  and  limitations  to  allow  a  mere 
intruder,  without  color  or  claim  of  title,  to  acquire  rights  on  easier  terms  than 
those  who  hold  under  adverse  possession.  Ball  v.  Cox,  7  Ind.  453.  Possession, 
to  be  adverse,  must  be  clearly  proved,  and  must  be  with  such  circumstances  as 
are  capable  in  their  nature  of  notifying  mankind  that  the  party  is  on  the  land, 
claiming  it  as  his  own,  openly  and  exclusively.  McClellan  v.  Kellogg,  17  111. 
498.  And  a  possession  is  not  subordinate,  but  adverse,  to  the  title  of  the  true 
owner,  wherever  it  is  inconsistent  with  the  idea  of  paramount  title  in  another. 
Morrison  v.  Hays,  19  Ga.  294.  Where  a  tenant  in  possession  dies,  adverse 
possession  cannot  commence  to  run  against  his  title  until  the  appointment  of 
his  administrator.  Miller  v.  Surls,  19  Ga.  331.  The  acts  of  going  yearly,  for  a 
few  weeks  at  a  time,  to  get  rails  and  other  timber  from  land,  though  only  valu- 
able for  timber,  do  not  amount  to  such  an  exercise  of  ownership  as  will  ripen 
a  defective  title,  or  give  an  action  of  quite  clausum  fregit.  Bartlett  z>.  Simmons, 
4  Jones  (N.  C.)  L.  295.  Nor  is  an  entry  for  survey.  Dillon  v.  Mattox,  21  id.  113. 
To  constitute  an  adverse  possession,  there  need  not  be  an  exclusive  claim  to 
the  entire  title,  nor  one  necessarily  excluding  the  idea  of  title  in  another  per- 
son. Wicklow  v.  Lane,  37  Barb.  [N.  Y.)  244.  In  Maryland,  before  the  present 
statute  was  adopted,  actual  inclosure  for  twenty  years  was  essential  to  the  pos- 
session of  a  tortfeasor  to  divest  the  title  of  the  true  owner.  The  act  of  1852 
provided  that  "  actual  inclosure  shall  not  be  necessary  to  prove  possession,  but 
acts  of  user  and  ownership  other  than  inclosure  may  be  given  in  evidence  to 
prove  possession."  It  was  held  that  this  last,  without  having  a  retroactive 
operation,  could  have  a  constitutional  effect  as  a  change  of  remedy.  Thistle 
v.  Frostburg  Coal  Co.,  10  Md.  129.  The  entry  of  a  person  not  having  a  per- 
fected title,  and  collecting  rent,  will  not  operate  as  an  interruption  of  the  occu- 
pant's possession.     Donahue  v.  O'Connor,  45  N.  Y.  Superior  Ct.  278. 

1  Shedd  v.  Powers,  28  Vt.  652;  Grimes  v.  Ragland,  28  Ga.  123. 

5  Clark  v.  Tabor,  28  Vt.  222;   Brown  v.  Cockerell,  33  Ala.  38. 

3  Covington  v.   McNickle,  18  B.   Mon.  (Ky.)  262.     The  character  of  the  user 

must   be  such   as  does  not  comport  with  the  public  easement.     Hatch  v.  Vt. 

Central  R.  R.  Co..  28  Vt.   142.     In  such  a  case  there  must  be  proof  of  acts  of 


63O  STATUTES   OF   LIMITATION.  [CHAP.   XX. 

SEC.  268.  How  Adverse  Possession  may  be  proved.  —  In 
determining  the  question  of  adverse  possession,  the  jury  may- 
take  into  consideration  the  nature  and  situation  of  the  land. 
And  the  placing  of  deeds  on  record,  passing  over  the  tract, 
employment  of  agents  living  in  the  neighborhood  to  look  after  it 
and  prevent  trespassers  upon  it,  payment  of  taxes  continuously 
under  claim  of  title,  and  the  like,  may  be  considered  by  them; 
and  it  is  not  always  necessary  to  prove  actual  occupation  by  the 
claimant ;  but  the  acts  referred  to  would  not  be  sufficient  of 
themselves  to  establish  title  by  reason  of  adverse  possession, 
unless  the  land  was  unsusceptible  of  more  definite  and  actual  pos- 
session, or  such  acts  were  known  to  the  party  holding  the  legal 
title,  and  known  to  have  been  done  under  claim  of  adverse  title.1 
Where  the  defendants  held  under  a  deed  executed  less  than 
twenty  years  before  the  commencement  of  an  action  to  recover 
possession  of  the  land,  it  was  held  that  evidence  to  show  that 
more  than  twenty  years  before  the  action  was  commenced  they 
entered  into  possession  under  an  executory  contract  for  the  pur- 
chase of  the  premises,  which  sale  was  afterwards  consummated  by 
deed,  was  admissible  for  the  purpose  of  establishing  an  adverse 
possession.2  A  person  may  acquire  title  by  adverse  user,  by  the 
occupancy  of  a  tenant,  or  any  person  who  occupies  for  him  and 
in  recognition  of  his  title.3 

ownership  done  with  an  intent  to  assert  title  thereto.  Simmons  v.  Nahant,  3 
Allen  (Mass.)  316.  See  Lane  v.  Kennedy,  13  Ohio  St.  42.  The  use,  by  the 
owner  of  the  adjoining  estate,  of  ihe  land  between  his  own  and  the  traveled 
part  of  the  way,  by  removing  a  wall  and  bank  and  building  another,  planting 
trees,  cutting  brushwood,  digging  the  soil,  and  placing  wood  and  wagons  upon 
it,  is  not  an  adverse  possession,  such  as  to  found  an  action  of  trespass  quare 
ct '  uium  against  an  intruder.     Smith  v.  Slocumb,  11  Gray  (Mass.)  280. 

1  Turner  v.  Hall,  60  Mo.  271;  Clement  v.  Perry,  34  Iowa,  564;  Washburn  v. 
Cutter,  17  Minn.  361.  Proof  of  a  general  inclosure  of  a  large  tract  of  land  is 
not  sufficient  to  constitute  an  actual,  exclusive  possession  of  a  specific  parcel 
within  it,  when  it  appears  that  much  of  the  land  within  the  inclosure  is  not 
claimed,  and  much  of  it  is  in  the  actual  occupancy  of  parties  claiming  and  hold- 
ing adversely.  Walsh  v.  Hill,  41  Cal.  571.  Nor  is  the  mere  fact  that  a  person 
built  a  fence  around  lands  evidence  of  any  possession  or  occupation,  but  the 
moive  and  claim  under  which  he  acted  should  be  shown.  Russell  v.  Davis,  38 
Conn.  502. 

'  I  lowland  v.  Newark  Cemetery  Ass'n,  66  Barb.  (N.  Y.)  366.  See  Soule  v. 
Barlow,  48  Vt.  132. 

I  on,  91   N.  C.  11.     In   North  Carolina  possession  of  part  of  the 

land  desi  ribed  in  a  deed  is  superior  to  that  of  any  person  who  has  not  superior 


§269.]  ADVERSE    POSSESSION    AND    REAL    ACTIONS.  63 1 

Sec.  269.  Continuity  of  Possession.  — The  possession  must  be 
continuous  during  the  entire  statutory  period,  and  uninterrupted, 
and  the  question  as  to  whether  or  not  it  has  been  kept  up  will 
depend  largely  upon  the  situation  and  character  of  the  land,  and 
is  a  mixed  question  of  law  and  fact.  "If  there  be  one  element 
more  distinctly  material  than  another  in  conferring  title,  where 
all  are  so,  it  is  the  existence  of  a  continuous  adverse  possession 
for  the  statutory  period;"  and  if  this  continuity  is  broken,  no 
title  can  be  gained  under  the  statute.1  So  absolute  is  this  rule, 
that  even  a  military  order  which  directs  all  persons  of  a  certain 
nationality  to  leave  the  State  within  a  certain  time  will  not  save 
the  benefits  of  a  previous  possession  to  one  who  falls  within  the 
terms  of  the  order,  during  the  period  of  such  enforced  absence, 

title  Staton  v.  Mullis  92  N.  C.  623.  In  Garrett  v,  Ramsey,  26  W.  Va.  345, 
where  an  elder  grantee  is  in  the  actual  possession  of  part  of  his  land  outside  of 
an  interlock  and  the  junior  grantee  is  in  the  actual  possession  of  a  part  of  the 
interlock  claiming  the  whole  to  the  extent  of  his  boundaries,  the  latter  will  not 
be  limited  in  his  possession  by  the  possession  of  the  former,  but  will  be 
regarded  as  in  possession  of  all  the  land  in  the  interlock;  but  where  the  deed 
does  not  contain  definite  boundaries,  no  title  of  adverse  user  can  be  acquired, 
where  the  statute  makes  the  occupancy  requisite  to  obtain  title  dependent  upon 
an  occupancy  under  "  known  and  visible  boundaries."  Elliott  v.  Dycke,  78 
Ala.  150;  Groft  v.  Weakland,  34  Penn.  St.    304. 

'Unbroken  continuity  of  possession  is  an  essential  element  of  an  adverse 
holding,  such  as  will  ripen  into  a  title  under  the  statute,  except  when  it 
is  interrupted  by  mere  intruders,  who  are  ejected  by  a  prompt  resort  to 
legal  remedies.  Beard  v.  Ryan,  78  Ala.  37.  If  the  property  is  of  a  char- 
acter to  admit  of  permanent  useful  improvement,  the  possession  should 
be  kept  up  during  the  statutory  period  by  actual  residence,  or  by  con- 
tinued cultivation  or  inclosure,  Johnston  z.  Irwin,  3  S.  &  R.  (Penn.)  291; 
Royer  v.  Benlow,  10  id.  303;  Jackson  v.  Schoonmaker,  2  Johns.  (N.  Y.) 
230;  either  of  which  will  do.  Hoey  v.  Furman,  1  Penn.  St.  295,  Occasional 
occupancy  with  payment  of  taxes  will  not  answer.  Sorber  v.  Willing,  10  Watts 
(Penn.)  141;  Ridd  e  v.  City  of  Philadelphia,  ri  Phila.  Leg.  Int.  84.  But  if  the 
land  is  not  such  as  to  admit  of  residence  or  improvement,  such  use  and  occu- 
pation of  it  as  from  its  nature  it  is  susceptible  of,  with  claim  of  ownership,  is 
an  actual  possession.  West  v,  Lanier,  9  Humph.  (Tenn.)  762.  But  intention 
will  not  be.  "  He  must  keep  his  flag  flying."  Stephens  z.  Leach,  19  Penn.  St. 
^65.  The  effect  given  to  claim  under  color  of  title  is,  perhaps,  not  the  same  in 
all  the  States.  See  Hill  v.  Saunders,  6  Rich.  (S.  C.)  62;  2  Smith's  Lead.  Cas. 
H.  &  W.'s  notes,  563.  Possession  must  be  continuous  and  adverse,  to  give 
title  under  the  statute.  Holcombe  v.  Austell.  19  Ga.  604;  Harrison  v.  Cachelin," 
23  Mo.  117;  Sharp  v.  Johnson,  22  Ark.  79;  Trapnall  v.  Burton,  24  A-k.  371; 
Smith  ?'.  Chapin,  31  Conn.  530;  Denham  v.  Holeman,  26  Ga.  182;  Slump  v. 
Henry,  6  Md.  201;  Wheeler  v.  Moody,  9  Tex.  372;  Story  v.  Saunders,  8  H  umph. 
(Tenn.)  663;  Miller  v.  Piatt,  5   Duer  (N.  Y.)  272. 


632  STATUTES   OF    LIMITATION.  [CHAP.   XX. 

although  the  animus  revertendi  remains,  as  the  courts  can  make 
no  saving  which  the  statute  has  omitted.1  The  mere  erection  of 
a  fence  around  a  lot,  which  is  not  kept  up,  is  not  sufficient  to 
preserve  the  continuity  of  possession  required.  So  where  one 
entered  on  land,  and  cut  logs,  split  boards,  and  otherwise  pre- 
pared for  building  a  house  on  the  land,  but  returned  to  his  home, 
which  was  in  another  county,  and  at  the  end  of  the  succeeding 
year  came  back  and  finished  the  house,  and  put  his  family  in  it, 
no  other  person  having  had  possession  during  said  interval,  it 
was  held  that  the  statute  of  limitations  did  not  run  in  his  favor 
during  such  absence.2  So  where  a  person  enters  upon  land,  splits 
a  few  hundred  rails,  encloses  and  ploughs  an  acre  and  a  half,  then 
abandons  the  premises  for  three  years,  but  at  the  end  of  that 
time  returns  and  occupies  the  same  continuously  for  four  years, 
he  cannot  be  considered  as  having  maintained  such  a  continuous 
adverse  possession  for  seven  years  as  is  necessary  to  perfect  a  title 
under  the  statute  of  limitations.3  Where  a  person  goes  into 
adverse  possession,  but  subsequently,  before  the  statute  has  run 
in  his  favor,  under  threats  from  the  owner  that  he  would  com- 
mence legal  proceedings  against  him,  he  is  induced  to  surrender 
possession,  such  surrender  breaks  the  continuity  of  his  possession, 
and  should  he  go  into  possession  again,  the  owner  having  entered 
in  the  meantime,  the  time  of  his  previous  possession  would  go 
for  nothing.4     A  mere  removal  from  the  land,  without  any  inten- 

'Halliday  v.  Cromwell,  37  Tex.  437.  Where  evidence  was  offered  lhat  a 
fence  consisting  of  small  posts  with  two  rails  fastened  on  them  was  placed 
round  a  lot  of  land  by  the  plaintiff,  but  there  was  no  evidence  of  his  actual 
occupation  or  use  of  the  land,  and  it  appeared  that  the  fence  was  suffered  to  go 
to  decay  in  a  year  or  two,  and  to  become  insufficient  to  keep  out  cattle,  it  was 
held  that  that  was  not  sufficient  to  constitute ptima  facie  evidence  of  title  to 
land  by  adverse  possession  at  common  law,  or  under  the  provisions  of  the  Cal- 
ifornia statute  of  limitations,  or  under  the  Van  Ness  ordinance,  as  against  a 
party  who  entered  into  possession  and  occupation  of  a  part  of  the  land  after  the 
fence  had  been  suffered  to  become  broken  down  and  decayed.  Borel  v.  Rol- 
lins, 30  Cal.  408. 

2  Bryne  v.  Lowrv,   19  Ga.  27. 

3  Joiner  v.  Borders,  32  Ga.  239.     See  Virgin  v.  Land,  32  Ga.  572. 

4  Shaffer  7,.  Lowry,  25  Penn.  St.  252;  Pederick  v.  Searle,  5  S.  &  R.  (Penn.) 
236.  Every  element  of  a  title  by  adverse  possession  must  exist;  otherwise  the 
possession  will  not  confer  title,  under  the  statute  of  limitations.  If  there  be 
one  element  more  distinctly  material  than  another  in  conferring  title,  where  all 
are  so,  it  is  the  existence  of  a  continuous  adverse  possession  for  the  requisite 
statuory  period.     Groft  v.  Weakland,  34  Penn.  St.  304.     Where  the  owner  of  a 


§  269.]  ADVERSE    POSSESSION   AND    REAL   ACTIONS.  633 

tion  of  abandoning  the  possession,  or  the  claim  to  the  land,  is 
not  necessarily  a  waiver  of  a  previous  adverse  possession.1  The 
question  whether  there  has  been  such  an  abandonment  of  posses- 
sion as  to  break  the  continuity  thereof  depends  upon  the  question 
whether  the  premises  were  vacant  for  such  a  length  of  time  and 
under  such  circumstances  that  the  constructive  possession  of  the 
owner  can  be  said  to  have  reasserted  itself;  and  where  the  defend- 
ant's grantor  vacated  the  premises  a  short  time  before  the  latter 
took  possession,  and  it  did  not  appear  that  during  such  time  he 
exercised  any  control  or  ownership  over  the  land,  it  was  held  that 
the  possession  was  not  continuous,  and  that  the  defendant  could 
not  avail  himself  of  the  possession  of  his  grantor.2  (a)  It  is 
settled  that  a  possession  which  can  ripen  into  a  title  must  not 
only  be  notorious,  but  continued  without  entry  or  action  by  the 

house  put  lumber  and  other  materials  on  an  adjoining  lot  while  building  his 
house;  erected  steps  on  the  lot  for  access  to  his  house;  used  it  in  going  in  and 
out  of  his  house,  and  for  drying  clothes;  held,  not  a  sufficient  possession  to 
give  title  under  the  statute  of  limitations.  Brolaskey  v.  McClain,  61  Penn. 
St.  146. 

1  Harper  v.  Tapley,  35  Miss.  506;  see  Ford  v  Wilson,  id.  490.  A  short  and 
reasonable  time  between  the  outgoing  and  incoming  of  persons  whose  continu- 
ous possession  in  succession  is  necessary  does  not  break  the  adverse  posses- 
sion, De  la  Vega  v.  Butler,  47  Tex.  529;  nor  does  a  temporary  absence  from 
the  premises  for  a  special  purpose.  Cunningham  v.  Patton,  6  Penn.  St.  355; 
Sailor  v.  Hertzogg,  10  id.  296.  But  an  abandonment  of  the  premises,  for  how- 
ever short  a  period,  although  with  the  animus  reveriendi,  will  destroy  the  con- 
tinuity. Susquehanna,  etc.,  R.  Co.  v.  Quick,  68  Penn.  St.  189.  Where,  in  an 
action  to  recover  land,  it  appeared  that  the  plaintiff,  under  color  of  title,  had 
made  occasional  entries  upon  the  land,  at  long  intervals,  for  the  purpose,  at 
one  time,  of  cutting  timber,  at  another,  of  making  bricks,  etc.,  the  plaintiff  was 
held  not  entitled  to  recover.     Williams  v.  Wallace,  78  N.  C.  354. 

5  Tegarden  v.  Carpenter,  36  Miss.  404. 

(a)  The  landowner  is  not  required  to  heightened  or  strengthened  from  time 
battle  continuously  and  successfully  to  time,  or  the  water  is  occasionally 
for  his  rights;  in  the  case  of  an  ease-  let  off  through  the  dam,  does  not  break 
ment  it  is  sufficient  to  interrupt  its  ac-  the  continuity  of  use.  Alcorn  v.  Sad- 
quisition  by  adverse  user  that  he  assert  ler,  71  Miss.  634.  See  Chicago  &  Alton 
his  claim  by  an  overt  act  affording  R.  Co.  v.  Keegan,  185  111.  70;  Dean  v. 
a.  cause  of  action.  Brayden  v.  New  Gbddard,  55  Minn.  290;  Elyton  Land 
York,  etc.,  R.  Co.,  172  Mass.  225.  Co.  v.  Denny,  108  Ala.  553.  But  the 
But  previous  possession  cannot  avail  occupation  must  be  always  substan- 
after  it  has  been  interrupted.  Chicago  tially  continuous,  and  such  acts  as 
&  Alton  R.  Co.  v.  Keegan,  185  111.  70.  the  carrying  on  of  lumbering  opera- 
In  general,  a  slight  variation  in  the  tions,  necessarily  casual  and  inter- 
user,  or  a  brief  interruption  in  the  en-  mittent,  are  insufficient  to  establish  a 
jovment  of  the  easement  to  its  full  ex-  disseisin,  though  supported  by  defect- 
tent,  as  when  the  right  to  flow  another's  ive  tax  deeds  of  the  land.  Fleming 
land    is    claimed,    and     the     dam    is  v.  Katahdin  Pulp  &  Paper  Co.,  93  Me. 


634  STATUTES   OF    LIMITATION.  [CHAP.   XX. 

legal  owner  for  the  full  statutory  period ; '  and,  as  indicated  by 
the  cases  already  cited,  a  person  who  enters  upon  premises  and 
commits  trespasses  and  then  leaves,  without  keeping  up  the 
indicia  of  claim  and  ownership,  does  not  destroy  the  effect  of 
tile  constructive  possession  of  the  legal  owner,  but  stands  rather 
in  the  light  of  a  trespasser  than  of  an  occupier  under  a  claim  of 
title.2  The  possession  must  also  continue  as  to  the  same 
premises;3  in  other  words,  the  locality  of  the  possession  must 
remain  the  same  throughout  the  entire  period.4  But  when  the 
statute  has  once  run  in  favor  of  the  occupant,  the  title  acquired 
is  indefeasible,  and  is  not  affected  by  a  subsequent  neglect  to 
keep  up  possession,  and  neither  the  legal  owner  nor  a  purchaser 
from  him  without  notice  of  such  adverse  title  acquire  any  rights, 
legal  or  equitable,  from  such  neglect.5  The  benefits  of  a  con- 
structive possession  may  be  lost,  where  a  person,  before  the 
statute  has  run  in  his  favor,  sells  the  part  of  the  land  which  he 
actually  occupied,  and  retains  the  balance.  In  that  case,  his 
possession  of  the  part  sold  goes  for  nothing,  as  to  the  part  occu- 
pied, and  the  grantee  does  not  succeed  to  it.6 

1  Hood  v.  Hood,  2  Grant's  Cas.  (Penn.)  229;  Andrews  v.  Mulford.  1  Hawy. 
(N.  C.)  320;  Park  v.  Cochran,  1  id.  180;  Wickliffe  v.  Ensor,  9  B.  Mon.  (Ky  )  253; 
Taylor  v.  Burnside,  1  Gratt.  (Va.)  165;  Merriam  v.  Hays,  19  Ga.  294;  Melvin  v. 
Proprietors,  etc.,  5  Met.  (Mass.)  15;  Christy  v.  Alford,  17  How.  (U.  S.)  601; 
Moore  v.  Collinshaw,  10  Penn.  St.  224. 

s  Bryne  v.  Lowry,  supra;  Borel  v.  Rollins,  supra. 

3  Potts  v.  Gilbert,  3  Wash   (U.  S.)  475. 

4  Griffith  v.  Schwenderman,  27  Mo.  412. 

5S:hall  v.  Williams  Valley  R.  Co.,  35  Penn.  St.  191.  In  Georgia  it  has  been 
held  that  if,  alter  having  held  possession  for  the  statutory  period,  the  occupant 
voluntarily  abandons  the  possession  of  the  premises,  the  presumption  arises 
that  his  holding  was  not  adverse.  Vickery  v.  Benson,  26  Ga.  582;  Russell  v. 
Slaton,  25  id.   193. 

6  Chandler  v.  Rushing,  38  Tex.  591.  If  a  person  has  written  evidence  of  title 
and  the  premises  are  occupied  by  a  tenant,  and  he  subsequently  sells  an 
undivided  half  of  the  land  to  the  tenant,  who  remains  in  possession  of  his  half 
as  owner,  and  of  the  other  half  as  tenant,  the  tenant's  possession  is  the  posses- 
sion of  the  landlord,  and  preserves'  his  possession.  Hanks  v.  Phillips,  39  Ga. 
55°- 

[10;  Barr  v.  Potter  (Ky.),  57  S.  W.  478.  quire  an   easement  by  adverse  use  is 

And  ;t  purchase  of  the  property  by  the  usually  the  same  as  that  provided  for 

demandant  at  a  tax  sale  is   immaterial  gaining  a  title  to  the  land  itself  by  ad- 

if  the  possession  is  not  changed.   Hard-  verse    possession.      Alcorn    v.   Sadler, 

Dolan,  172   Mass.  395.     See   12  71  Miss.  634;  Hodgkins  v.  Farrington, 

II  1 1  v.  L.   Rev.  569.  [50  Mass.  535,    547;   Cole  v.  Bradbury, 

I  he   period  <>f   time    required    to  ac-  86  Me.  380;  Jones  on  Easements,  ch.  7. 


§  270.]  ADVERSE    POSSESSION    AND    REAL   ACTIONS.  635 

SEC.  270.  How  the  Continuity  of  the  Possession  maybe  broken 
—  The  continuity  of  possession  may  be  broken  by  an  entry  of 
the  legal  owner,  by  an  abandonment  of  the  possession  by  the 
occupant,  by  a  subsequent  recognition  of  the  owner's  title,  or  an 
acknowledgment  made  before  the  statute  has  run  in  his  favor 
that  he  has  and  claims  no  title  to  the  lands  occupied. 

First,  an  entry  by  the  legal  owner  upon  the  land  breaks  the 
continuity  of  an  adverse  possession,  when  it  is  made  openly  with 
the  intention  of  asserting  his  claim  thereto,  and  is  accompanied 
with  acts  upon  the  land  which  characterize  the  assertion  of  title 
or  ownership;1  and  a  mere  naked  entry,  which  is  made  for  the 
purpose  of  ascertaining  whether  or  not  there  is  any  adverse  occu- 
pancy, is  not  sufficient  to  break  or  interrupt  the  possession.2 
The  entry  must  be  made  openly,  with  the  purpose  of  asserting 
his  claim  thereto,  and  must  be  accompanied. by  acts  of  ownership 
which  characterize  and  effectuate  the  claim ;  and  an  entry  upon 
land  and  cutting  wood  or  timber  therefrom,  or  to  plough,  to  sow, 
or  to  reap  or  gather  the  crops  thereon,  would  be  such  acts.3     Of 

1  Henderson  v.  Griffin,  3  Pet.  (U.  S  )  151.  But  the  entry  must  be  made  by 
the  owner.  The  interruption  of  mere  trespassers,  if  unknown,  will  nol  affect 
the  possession;  but  if  known,  and  repeated,  without  legal  proceedings  being 
instituted,  it  is  said  they  become  legitimm  interruptiones,  and  are  converted  into 
adverse  assertions  of  right,  which,  if  not  promptly  and  effectually  litigated, 
defeat  ihe  claim  of  rightful  prescription.  Doe  v.  Eslava,  11  Ala.  1028;  Hender- 
son v.  Griffin,  supra.  The  mere  intrusion  of  trespassers,  not  continuing  long 
enough  to  raise  a  presumption  that  it  was  known  to  the  one  in  possession,  does 
not  break  the  continuity  of  his  possession.  Bell  v.  Dinson,  56  Ala.  444.  Nor 
is  it  btoken  by  negotiating  with  other  claimants,  if  there  is  no  waiver  or  non- 
claim  on  the  occupant's  part.  40  Mich.  595.  Nor  by  a  forcible  entry  of  the 
legal  owner  when  the  restitution  is  made  by  law,  and  the  period  during  which 
the  owner  held  possession  will  not  be  deducted  from  the  occupant's  possession. 
Ferguson  v.  Bartholomew,  67  Mo,  212.  But  where  the  legal  owner  interrupts 
possession,  and  the  occupant  does  not  regain  possession  by  legal  proceedings, 
his  posses  ion  must  begin  de  novo.  Steeple  v.  Downing,  60  Md.  478.  Where 
a  person  purchases  land,  and  the  grantor's  title  failing,  he  sues  for  and  recovers 
back  the  money  paid  therefor,  he  cannot  set  up  the  possession  held  by  him 
under  such  conveyance  to  defeat  the  title  of  the  true  owner.  Davenport  v. 
Sebring,  52  Iowa,  364;   Piper  v.  Sloneker,  2  Grant's  Cas.  (Penn.)  113. 

8  Bowen  v.  Guild,  130  Mass.  121. 

*  Thus,  where  an  owner  of  land  which  was  in  the  adverse  occupancy  of 
another  went  thereon  with  a  purchaser  to  show  him  the  land  and  to  ascertain 
the  quantity,  quality,  and  value  of  the  wood  thereon,  accompanied  by  the  sub- 
sequent execution  of  a  deed  to  the  person  so  entering  with  him,  was  held  a 
sufficient  entry  to  break  the  continuity  of  the  adverse  occupant's  possession, 
Brickett  v.  Spofford,  14  Gray  (Mass.)  514;   and  where  an  entry  was  made  upon 


636  STATUTES   OF   LIMITATION.  [CHAP.   XX. 

course,  the  bringing  of  an  action  of  ejectment  and  a  recovery 
therein,  accompanied  by  an  entry,  breaks  the  continuity  of  pos- 
session.1 An  entry  made  by  the  legal  owner,  with  "  high  hand  " 
and  forcibly,  does  not  defeat  the  continuity  of  the  possession  of 
an  adverse  occupant,  if  he  subsequently  regains  possession  by  an 
action  for  forcible  entry  and  detainer.2  In  some  of  the  States, 
by  statute,  no  entry  is  sufficient  to  toll  the  statute,  unless  it  is 
followed  by  an  action  within  one  year  from  the  time  it  was 
made;3  and  in  Texas  "peaceable  possession"  is  defined  to  be 
that  which  is  continuous,  and  not  interrupted  by  action.4  In 
Massachusetts  and  Michigan,5  an  entry  must  be  followed  by  pos- 
session for  one  year,  or  by  an  action  brought  within  one  year 
from  the  time  entry  was  made.     In  Kentucky,6  Virginia,7  and 

land  by  the  owner,  and  a  deed  of  the  premises  was  there  by  him  delivered  to 
a  purchaser,  it  was  held  that  the  dissseisin  was  so  far  purged  by  the  entry  as  to 
give  operation  to  the  deed,  although  the  grantee  knew  that  the  land  was 
claimed  adversely.  Oakes  v.  Marcy,  10  Pick.  (Mass.)  195;  Knox  v.  Jenks,  7 
Mass.  488;  Warner  v.  Bull,  13  Met.  (Mass.)  1.  The  rule  relative  to  entries 
under  these  statutes  is  thus  stated:  "  When  a  party  is  once  dispossessed,  it  is 
not  every  entry  upon  the  premises  without  permission  that  would  disturb  the 
adverse  possession.  He  may  tread  upon  his  own  soil,  and  still  be  as  much  out 
of  the  possession  of  it  there  as  elsewhere.  He  must  assert  his  claim  to  the 
land,  perform  some  act  which  would  reinstate  him  in  possession,  before  he  can 
regain  what  he  has  lost.  It  is  evident,  therefore,  that  an  entry  by  stealth, 
under  circumstances  that  go  to  show  that  the  party  claimed  no  right  to  enter, 
or  an  entry  for  other  purposes  than  those  connected  with  a  right  to  enter,  would 
not  be  sufficient  to  break  the  continuity  of  exclusive  possession  in  another." 
Burrows  v.  Gallup,  32  Conn.  493.  An  entry  upon  land  in  the  possession  of 
another,  in  order  to  work  a  legal  interruption  of  such  possession,  must  be  so 
made  as  to  enable  the  party  in  possession,  by  the  use  of  reasonable  diligence, 
to  ascertain  the  right  and  claim  of  the  party  making  the  entry.  Wing  v.  Hall, 
47  Vt.  182.  A  claim  based  on  adverse  constructive  possession  under  a  tax- 
deed  for  the  three  years  limi'ed  by  the  statute,  may  be  avoided  by  the  owner 
by  proof  of  actual  use  and  occupation  for  any  portion  of  the  statutory  period. 
Such  occupation  may  be  established  by  proof  of  his  rental  of  the  land  to  neigh- 
boring farmers.     Wilson  v.  Henry,  35  Wis.  241. 

1  Groft  v.  Weakland,  34  Penn.  St.  304.  The  statute  is  not  suspended  by  an 
unsuccessful  action  of  ejectment  not  leading  to  a  change  of  possession.  Work- 
man v.  Guthrie,  29  Penn.  St.  495;   Kennedy  v.  Reynolds,  27  Ala.  364. 

*  Cary  v.  Edmunds,  71  Mo.  523. 

3  Appendix,  New  York,  g  367:  North  Carolina,  §  144;  South  Carolina,  §  103; 
Pennsylvania,  §  16;  Wisconsin,  §  4209;  Missouri,  g  6765;  California,  §  320; 
Nevada,  js  6;   Idaho,  §  4038;   Montana,  £  31:  Arizona,  §  5;  Dakota,  §43. 

*  Appendix,  Texas. 

'Appendix,  Massachusetts,  §  8;  Michigan,  §  8. 

*  Appondix,  Kentucky. 
1  Appendix,  Virginia. 


§  270.]  ADVERSE    POSSESSION   AND    REAL   ACTIONS.  637 

West  Virginia,1  no  continual  claim  upon  or  near  real  property- 
preserves  the  right  to  bring  an  action  therefor.  After  a  party  has 
been  evicted  under  a  recovery  in  ejectment,  the  continuity  of  his 
possession  is  destroyed,  and  he  cannot  keep  it  up  by  the  payment 
of  taxes  on  the  land,  or  the  assertion  of  any  other  claim  thereto.2 
Instances  may  arise  where  the  facts  are  not  controverted,  where 
the  question  as  to  whether  the  possession  has  been  interrupted 
by  entry  is  properly  a  question  of  law  for  the  court,  but 
generally  it  is  a  question  for  the  jury  in  view  of  all  the 
circumstances.3 

Second,  the  continuity  of  possession  may  also  be  broken  by  an 
acknowledgment  by  the  occupant  of  the  owner's  title,  before  the 
statute  has  run  in  his  favor,  but  not  after  it  has  run.4  In  Georgia 
it  has  been  held  that  such  an  acknowledgment  made  by  a  tenant 
in  possession,  either  before  or  afte-  the  statutory  period  has 
elapsed,  prevents  the  running  of  the  statute  against  the  owner  of 
the  fee.5  The  ground  upon  which  these  cases  proceed  is,  that 
such  an  admission  rebuts  the  allegation  of  adverse  possession  ;  but 
where  the  possession  is  shown  to  have  been  adverse  in  fact,  and 
the  bar  to  have  become  complete  before  an  acknowledgment  of 
title  in  the  legal  owner  is  made,  it  can  have  no  such  effect, 
especially  if  it  is  by  parol.  A  parol  acknowledgment  of  title 
made  while  the  statute  is  runnine  must  be  such  as  to  show  that 
the  occupant  no  longer  intends  to  hold  adversely,6  and  must  refer 
to  the  title  set  up  by  the  occupant.7  Thus,  where  the  statutory 
bar  was  sought  to  be  rebutted  by  proof  of  a  lease  executed  by  the 
occupier  and  the  claimant,  it  was  held  that  it  might  be  shown 
that  the  latter  held  the  legal  title  as  trustee  for  the  former,  in 

1  Appendix.  West  Virginia. 

8  Groft  v.  Weakland,  34.  Penn.  St.  304. 

3  Stevens  v.  Taft,  n  Gray  (Mass.)  33;  O'Hara  v.  Richardson,  46  Penn.  St. 
385;  Groft  v  Weakland,  34  id.  304.;  Jackson  v.  Joy,  9  Johns.  (N.  Y.)  102; 
Beverly  v.  Burke,  9  Ga.  440;  Van  Gorden  v.  Jackson,  5  Johns.  (N.  Y.)  440; 
Jackson  v.  Wood,  12  id.  242;  Fishar  v.  Prosser,  Cowp.  217;  Mayor  of  Hull  v. 
Horner,  id.  102;   Peaceable  v.  Reed,  1  East,  568. 

4  Bradford  v.  Guthrie,  4  Brewst.  (Penn.)  351 ;  London  v.  Lyman,  1  Phila. 
(Penn.)  465.  In  Bell  v.  Hartley,  4  W.  &  S.  32,  an  acknowledgment  made 
twenty-one  years  before  ejectment  was  brought  was  held  not  admissible. 

6  Long  v.  Young,  28  Ga.  130;  Cook  v.  Long,  27  id.  280. 

6  Sailor  v.   Hertzog,  4  Whart.  (Penn.)  259;   Ingersoll  v.   Lewis,  n   Penn.   St. 
512;   Moore  v.  Collinshaw,  10  id.  224.     See  Ley  v.  Peter,  3  H.  &  N.  101. 
1  Farmers'  &  Mechanics'  Bank  v.  Wilson,  10  Watts  (Penn.)  261. 


638  STATUTES   OF   LIMITATION.  [CHAP.  XX. 

order  to  explain  the  apparent  admission  of  title.1  An  admission 
or  declaration  of  a  person  that  he  went  into  possession  by  per- 
mission of  the  owner,  or  in  the  exercise  of  a  legal  right,  and  that 
the  owner  leased  or  devised  it  to  him  during  life,  negatives  any 
adverse  possession.2  So  where  a  person  admits  that  he  holds  for 
the  true  owner,3  or  agrees  even  by  parol  to  surrender  the  posses- 
sion to  the  legal  owner,4  or  to  hold  possession  for  or  under  him,5 
the  continuity  of  possession  is  broken.  So  if  the  tenant  of  a 
mere  intruder,  without  color  of  title,  takes  a  conveyance  from 
the  legal  owner,  and  gives  a  mortgage  for  the  purchase-money, 
it  has  been  held  that  this  breaks  the  continuity  of  the  possession, 
at  least  as  against  the  holder  of  the  mortgage.6  So  if  a  person  in 
possession  of  lands  adversely  under  a  warrant  procures  it  to  be 
assessed  to  him  in  less  quantity  than  is  called  for  in  the  survey, 
it  is  held  that  the  continuity  of  his  possession  is  thereby  broken 
by  detaching  from  it  the  landmarks  which  had  sustained  it.7  So 
the  occupier  must  continue  his  possession  for  the  whole  period 
on  the  same  claim ;  and  if  before  the  statute  has  run  he  sets  up 
another  and  different  claim,  the  continuity  of  his  possession  is 
broken,  and  must  begin  de  novo.  And  where  a  party  in  the 
adverse  occupancy  of  land  under  a  statute  which  gave  possession 
in  seven  years,  where  the  taxes,  etc.,  are  paid  by  him,  he  must 
fully  comply  with  the  statutory  requirement ;  and  if  he  permits 
the  land  to  be  sold  for  taxes  during  the  running  of  the  statute, 
and  afterwards  redeems  the  land  under  such  sale,  his  possession 
can  only  date  from  the  time  of  redemption.8  The  continuity  of 
possession  is  broken  by  a  decree  directing  the  occupant  to  convey 
the  land,  although  the  possession  is  not  disturbed,  as  the  decree 
has  the  effect  of  a  voluntary  conveyance.9 

Third,  the  continuity  of  possession  may  be  broken  by  a  recog- 
nition of  the  owner's  title  during  the  period  that  the  statute  was 
running.10     And  this  may  arise  in  a  variety  of  ways,  as  by  taking 

1  Neele  v.  McElhenny,  69  Penn.  St.  300. 
8  Breidgam  v.  Hoff  master,  61  Penn.  St.  223. 
3Criswell  v.  Altemus,  7  Watts  (Penn.)  565. 
'•  Moore  v.  Small,  9  Penn.  St.  194. 
6  Read  v.  Thompson,  5  Penn.  St.  327. 
*  Koons  v.  Steele,  19  Penn.  St.  203. 
'Clarke  v.  Dougan,  12  Penn.  St.  87. 

6  Wettig  v.  Bowman,  47  111.  17;  Austin  v.  Bailey,  37  Vt.  219. 
■  Gower  v.  Quinlan,  40  Mich.  572. 
'"  Koons  v.  Steele,  19  Penn.  St.  203. 


§  270.]  ADVERSE    POSSESSION   AND    REAL   ACTIONS.  639 

a  lease  from  him  of  the  land,  or  offering  to  hold  the  land  under 
him; '  offering  to  purchase  or  surrender  it;2  or  asserting  that  he 
gave  him  the  use  of  the  land  for  a  term  or  for  life ;  or  in  any  way 
which  admits  the  superiority  of  the  owner's  title,  and  that  the 
occupant  holds  under,  for,  or  in  subservience  to  him;3  or  when 
he,  in  fact,  holds  under  a  title  which  does  not  give  him  the  fee, 
although  he  supposes  that  it  does,  and  disposes  of  the  estate 
under  that  misapprehension.1  Thus,  where  a  widow  remains  in 
possession  of  her  husband's  lands  after  his  decease,  her  possession 
is  not  adverse  to  the  heirs,5  even  though  she  buys  in  an  outstand- 
ing title;6  nor  is  the  possession  of  the  husband  adverse  to  the 
wife  during  her  lifetime;7  nor  of  an  agent  to  his  principal,8  — 
because  in  all  these  cases  the  occupant  holds  in  recognition  of  a 
superior  title,  and  in  subservience  to  it.  When  a  person  enters 
by  the  permission  of  the  owner,  or  is  let  in  by  operation  of  law  in 
subservience  to  the  title  of  another,  his  occupation  cannot  become 
adverse  without  the  clearest  evidence  of  a  repudiation  by  him  of 
the  owner's  title,  and  of  a  claim  to  hold  in  hostility  to  it.9  When 
a  person  has  entered  by  the  permission  of  another,  and  thus 
becomes  a  tenant  of  such  person,  either  by  sufferance  or  at  will, 
even  though  without  rent,  every  presumption  is  in  favor  of  a 
continued  holding  in  that  capacity,  and  he  cannot  set  up  an 
adverse  claim  until  he  has  in  some  manner  brought  the  knowledge 
of  his  intention  home  to  the  person  under  whom  he  entered ; 10 
and  a  relaxation  of  this  rule  cannot  consistently  be  made.11 

1  Read  v.  Thompson,  5  Perm.  St.  327.     And  in  this  case  it  was  held  that  this 
may  be  shown  by  admission  to  strangers. 
*  Moore  v.  Small,  q  Penn.  St.  194. 

3Criswell  v.  Altemus,  7  Watts  (Penn.)  565     Dikeman  v.  Parrish,  6  id.  210. 
4Tullock  v.  Worrall,  49  Penn.  St.   133. 

5  Cook  v.  Nicholas,  2  W.  &  S.  (Penn.)  27;   Hall  v.  Mathias,  4  id.  331. 

6  Idding  v.  Cairns,  2  Grant's  Cas.  (Penn  )  88. 
1  Kille  v.  Ege,  79  Penn.  St.  15. 

8  Comegys  v.  Carley,  3  Watts  (Penn.)  280. 

9  Ca  jwallader  v.  App,  81  Penn.  St.  194;  McGinnis  v.  Porrter,  20  id.  86.  And 
a  tenant  who  holds  over  does  not  hold  adversely  until  he  in  some  manner  gives 
the  landlord  notice  of  such  an  intention.  Schuylkill,  etc.,  R.  Co.  v.  McCreary, 
58  Penn.  St.  304. 

'°  McGinnis  v.  Porter,  supra;  McMasters  v.  Bell,  2  P.  &  W.  (Penn.)  181 ;  Hood 
v.  Hood,  2  Grant's  Cas.  (Penn.)  229;  Martin  v.  Jackson,  27  Penn.  Si.  504.  And 
even  if  rent  was  agreed  to  be  paid,  but  is  not  for  many  years,  that  circumstance 


11  Collins  v.  Johnson,  57  Ala.  304. 


640  STATUTES   OF   LIMITATION.  [CHAP.   XX. 

SEC.  271.  Tacking  Possession. — The  successive  possession  of 
several  distinct  occupants  of  land,  between  whom  no  privity 
exists,  cannot  be  united  to  make  up  the  period  required  to  perfect 
title  by  possession.1  But  if  a  successive  privity  exists  between 
them,  the  last  occupant  may  avail  himself  of  the  occupancy  of 
his  predecessors,  (a)  Thus,  where  one  of  two  joint  tenants,  after 
the  death  of  the  other,  purchased  the  land  at  partition  sale  under 
an  order  of  court,  and  paid  the  amount  of  his  bid,  but  took  no 

does  not  defeat  the  owner's  right  of  entry.  Buller's  N.  P.  104;  Saunders  v. 
Annesly,  2  Sch.  &  Lef.  106;  Orrel  v.  Maddox,  Runnington  on  Eject.,  Appen- 
dix, 1;  Doe  v.  Danvers,  7  East,  299.  See  Jackson  v.  Davis,  5  Cow.  (N.  Y.)  123. 
The  right  of  a  tenant  to  set  up  the  statute  to  defeat  the  title  of  his  landlord  does 
not  depend  upon  the  landlord's  right  to  receive  rent,  but  upon  his  right  to 
enter.  Failing  v.  Schenck,  3  Hill  (N.  Y.)  344.  See  Williams  z>.  Annapolis,  6  H. 
&  J.  (Md.)  529.  In  Moore  v.  Turpin,  1  Speers  (S.  C.)  32,  it  was  held  that,  after 
a  great  lapse  of  time,  and  an  omission  to  pay  rent,  it  might  be  presumed  that 
the  relation  of  landlord  and  tenant  existed. 

1  Pegues  v.  Warley,  14  S.  C.  180;  Rutherford  v.  Hobbs,  63  Ga.  243;  Schrack 
v.  Zubler,  34  Penn.  St.  3S.  But  in  South  Carolina  the  right  to  tack  successive 
possessions  is  confined  to  cases  between  landlord  and  tenant,  and  disseisors 
and  their  heirs.  King  v.  Smith,  Rice  (S.  C.)  II.  In  Potts  v.  Gilbert,  3  Wash. 
(U.  S.)  475,  it  was  held  that  there  could  be  r.o  tacking  of  possession  to  make  out 
title  by  adverse  use,  because,  as  he  insisted,  such  a  possessor  has  nothing  to 
convey.  But  this  case  has  never  been  recognized  as  embodying  the  true  doc- 
trine. Moore  v.  Small,  9  Penn.  St.  194.  See  Overfield  v.  Christie,  7  S.  &  R. 
(Penn.)  177;  Durel  v.  Tennison,  31  La.  Ann.  538.  If  the  continuity  be  broken, 
either  by  fraud  or  a  wrongful  entry,  the  protection  given  by  ihe  statute  is  lost; 
and  a  parly  cannot  add  to  his  own  possession  that  of  the  one  who  preceded 
him,  when  he  did  not  enter  into  possession  under  or  through  such  predecessor. 
San  Francisco  v.  Fulde,  37  Cal.  349.  There  must  be  privity  of  grant  or 
descent,  or  some  judicial  or  other  proceedings  which  shall  connect  the  posses- 
sions so  that  the  latter  shall  apparently  hold  by  right  of  the  former;  but  not 
even  a  writing  is  necessary  if  it  appears  that  the  holding  is  continuous  and 
under  the  first  entry;  and  this  doctrine  applies  not  only  to  actual  but  construc- 
tive possession  under  color  of  title.     Crispen  v.  Hannavan,  50  Mo.  536. 

In   such   case   the   occupant   has  v.  Harris,  162  Penn.  St.  397;  Hickman 

merely   to   prove    that    the    possession  v.   Link,  97   Mo.   482;  Adair  v.   Mette, 

his   been    legally  continued    from  one  156  Mo.  496;  Robinson  v.  Allison  (Ala.), 

holder  to  another,  as  the  term  of  enjoy-  27  So.  461;   Collier  v.    Couts,   92   Tex. 

ment    is    deemed    uninterrupted    from  234;    14  Harv.  L.  Rev.  72.     So  when  a 

ancestor  to  heirs,  and   from  vendor  to  disseisor   leases   the   land  to  a  .tenant 

vendee.       Cole   t.    Bradbury,    86    Me.  who  continues  to  occupy  it  under  his 

380,    383;   Leonard  v.  Leonard,  7  Allen  lease,  the  tenant's  adverse  possession 

(Mass.)  280;   Kepley  v.  Scully,  185  111.  may  be   tacked   to   the   landlord's,  his 

52;  Smith    v.    Reich,    30   N.  Y.  S.    167;  possession   being  that  of  the  landlord. 

Clark  (S,  C),  38   S.    E.   150;  Holmes    v.    Turner's    Falls    Co.,     150 

v.  Nealon,  58  N.  J.  L.  21;  Reidzr.  Mass.  535,  547. 
Anderson,  13  App.  D,  C.  30;  Costello 


§  271.]  ADVERSE    POSSESSION   AND    REAL   ACTIONS.  64I 

deed,  it  was  held  *  that  his  possession  thereafter  might  be  added 
to  the  time  of  the  joint  possession  of  him  and  his  co-tenant  to 
make  up  an  adverse  possession  of  the  necessary  length  to  bar  an 
entry.2  But  even  an  innocent  purchaser  cannot  tack  to  his  own 
possession  that  of  his  grantor,  which  originated  in  fraud  of  the 

1  Congdon  v.  Morgan,  14  S.  C.  587.  A  party  cannot  connect  his  possession 
of  the  land  previous  to  obtaining  a  deed  with  his  subsequent  possession  under 
a  deed,  to  make  out  the  seven  years.  Barnes  v.  Vickers,  59  Tenn.  370.  A  son's 
possession  of  land  after  the  death  of  his  father  may  be  presumed  to  be  for  the 
benefit  of  the  father's  estate.  Alexander  v.  Stewart.  50  Vt.  87.  From  an 
adverse  possession  of  land  for  thirty  years,  the  law  presumes  a  grant  from  the 
State,  without  a  privily  or  connection  among  the  successive  tenants.  Davis  v. 
McArthur,  78  N.  C.  357.  Actual  possession  by  prior  occupants  claiming  title, 
although  having  no  color  of  title,  will  avail  a  subsequent  occupant  under  color 
of  title,  claiming  under  such  prior  occupants,  in  making  out  a  possessory  title 
in  himself.  Day  v.  Wilder,  47  Vt.  584.  See  Shuffleton  v.  Nelson,  2  Sawyer 
<U.  S.)  540. 

2  In  Durel  v.  Tennison,  31  La.  An.  538,  it  was  held  that  a  claimant  might  tack 
to  his  own  possession  that  of  his  grantor  to  make  out  prescription.  In  Texas, 
if  the  possession  of  two  or  more  parties  in  succession,  holding  in  privity  with 
each  other,  under  title  or  color  of  title,  make  out  the  prescribed  term,  the  bar 
is  complete.  Christy  v.  Alford,  17  How.  (U.  S.)  601.  So,  also,  in  Tennessee. 
Lea  v.  Polk  County  Copper  Co.,  21  id.  494;  Doswell  v.  De  la  Lanza,  ?o  id.  29; 
Benson  v.  Stewart,  30  Miss.  49;  Morrison  v.  Hays,  19  Ga.  294;  Chouquette  v. 
Barada,  23  Mo.  331;  Shaw  v.  Nicholay,  30  Mo.  99;  Chadbourne  v.  Swan,  40 
Me.  260.  A  wife  has  no  such  privity  of  estate  with  her  husband,  in  land  of 
which  he  died  in  an  adverse  possession  to  the  real  owner,  that  her  continued 
adverse  possession  after  his  decease  can  be  tacked  to  his,  to  give  her  a  com- 
plete  title  by  disseisin.  Sawyer  v.  Kendall,  10  Cush.  (Mass.)  241.  See  Holton 
v.  Whitney,  30  Vt.  405.  One  who  purchases  at  an  administrator's  sale  land 
which  the  decedent  occupied,  used,  and  cultivated  claiming  it  as  his  own,  but 
without  color  of  title,  or  deed  on  record,  may,  in  pleading  the  ten  years'  limita- 
tion, tack  said  decedent's  possession  to  his  own.  Cochrane  v.  Faris,  18  Tex. 
850.  So  a  purchaser  even  by  parol  contract  may  tack  his  possession  to  that  of 
his  vendor.  Cunningham  v.  Potter,  6  Penn.  St.  355;  Caston  v.  Caston,  2  Rich. 
(S.  C.)  Eq.  1;  Doe  v.  Eslava,  n  Ala.  1028.  See  Dikeman  v.  Parrish,  6  Penn.  St. 
210;  Adams  z:  Tiernan,  5  Dana  (Ky.)  394;  Chilton  v.  Wilson,  9  Humph.  (Tenn.) 
399;  Overfield  v.  Christie,  7  S.  &  R.  (Penn.)  173;  Valentine  v.  Cooley,  Meigs 
(Tenn  )  613.  A  purchaser  under  an  execution  sale  may  tack  the  possession  of 
the  judgment  debtor  to  his  own.  Schutz  v.  Fitztvalter,  5  Penn.  St.  126.  But 
see  Bullen  v.  Arnold,  31  Me  583,  where  it  was  held  that  the  title  must  pass  by 
contract  in  order  that  the  possessions  may  be  tacked.  But  in  Moffitt  v. 
McDonald,  11  Humph.  (Tenn.)  457,  it  was  held  that  the  possession  of  an  admin- 
istrator might  be  tacked  to  that  of  his  intestate.  And  in  Cleveland  Ins.  Co.  v. 
Reed,  24  How.  (U.  S.)  284,  it  was  held  that  the  title  of  the  assignee  in  bank- 
ruptcy may  be  tacked  to  that  of  his  grantee.  See  also  Fanning  v.  Willcox,  3 
Day  (Conn.)  258.  and  Smith  v.  Chapin,  31  Conn.  530,  holding  that  no  privity  of 
estate  between  successive  occupants  need  be  shown,  but  that  a  continuous  and 

[stats,  of  lim. —  41] 


642  STATUTES   OF   LIMITATION.  [CHAP.   XX.. 

true  owner,1  nor  the  possession  of  a  person  which  was  not  adverse. 
In  order  to  create  the  privity  requisite  to  enable  a  subsequent 
occupant  to  tack  to  his  possession  that  of  a  prior  occupant,  it  is 
not  necessary  that  there  should  be  a  conveyance  in  writing.  It 
is  sufficient  if  it  is  shown  that  the  prior  occupant  transferred  his 
possession  to  him,  even  though  by  parol.2  So,  too,  the  posses- 
sion of  a  prior  occupant  may  be  passed  by  operation  of  law,  as  of 
an  execution  debtor  to  a  purchaser  of  the  land  on  execution  sale,3 
and  of  an  intestate  to  that  of  an  administrator,4  and  of  an  assignee 
in  bankruptcy  to  that  of  a  purchaser  from  him,5  and  of  a  tenant 
under  the  ancestor  to  that  of  the  heirs,6  and  in  all  cases  where  the 
interest  of  the  occupant  passes  by  contract  or  by  operation  of  law.7 

uninterrupted  possession  for  the  requisite  period,  whether  by  one  or  more  per- 
sons, is  sufficient  where  such  was  the  understanding  of  the  parties. 

1  Farrow  v.  Bullock,  63  Ga.  360. 

8  Weber  v.  Anderson,  73  111.  439.  In  Smith  v.  Chapin,  31  Conn.  530,  evidence 
that  certain  land  which  the  plaintiff's  grantor  held  adversely  was  omitted  by 
mistake  from  the  conveyance,  was  held  admissible  to  show  the  relation  of  the 
possession  taken  to  that  relinquished,  and  to  enable  the  defendant  to  tack  his 
possession  to  that  of  his  predecessor.  It  is  sufficient  if  there  is  an  adverse  pos- 
session continued  uninterruptedly  for  fifteen  years,  whether  by  one  or  more 
persons.  Ibid.;  Fanning  v.  Willcox,  3  Day  (Conn.)  258.  See  Jackson  v.  Moore, 
13  Johns.  (N.  Y.)  513;  Cunningham  v.  Patton,  6  Penn.  St.  355;  Valentine  v. 
Cooley,  Meigs  (Tenn.)  613.  The  privity  requisite  to  be  established  may  be  by 
will,  Haynes  v.  Boardman,  119  Mass.  414;  or  by  descent,  Currier  v.  Gale,  9 
Allen  (Mas?.)  522;  or  it  may  be  continued  by  an  administrator.  Peele  v. 
Cheever,  8  Allen  (Mass.)  S9.  Where  the  holder  of  color  of  title  held  possession 
and  paid  taxes  on  the  land  for  four  years,  and  then  gave  a  contract  to  sell  the 
land  to  anolher,  who  went  into  possession  and  paid  taxes  for  five  years  more, 
the  payment  of  the  last  five  years'  taxes  vas  held  a  payment  under  the  title  of 
the  holder  of  the  color  of  title,  inuring  to  establish  the  bar.  Kruse  v.  Wilson, 
79  111.  233. 

3Schutz  v.  Fitzwalter,  supra.  In  order  that  the  possession  of  successive 
occupants  may  be  so  continuously  adverse  as  to  inure  to  the  benefit  of  the  last 
occupant,  there  must  be  a  privity  between  them,  either  by  contract  or  by  opera- 
tion of  law.     Shaw  v.  Nicholay,  30  Mo.  99. 

4  Moffitt  v.  McDonald,  supra. 

6  Cleveland  Ins.  Co.  v.  Reed,  sup/a. 

*  Williams  v.  McAliley,  Cheves  (S.  C.)  200.  If  a  parent  places  a  son  in  pos- 
session of  land  under  a  verbal  gift,  and  the  possession  is  held  by  the  son 
adversely  to  the  father  and  all  other  persons,  the  death  of  the  father  will  not 
crrest  the  running  of  the  statute.  By  the  descent  cast  the  heirs  are  placed 
exactly  in  the  shoes  of  their  ancestor;  and  the  statute  having  commenced  run- 
ning against  him  in  his  lifetime,  it  continues  to  run  without  intermission 
ag  linst  his  heirs.      Haynes  v.  Jones,  2  Head  (Tenn.)  372. 

1  Pederick  v.  Searlc,  supra,  2  S.  &  R.  (Pcnn.)  240. 


§  271.]  ADVERSE    POSSESSION   AND    REAL   ACTIONS. 


643 


But  such  possession  of  a  previous  occupant  cannot  be  tacked 
to  that  of  a  subsequent  one,  where  there  is  no  privity.  Thus, 
it  is  held  that  the  possession  of  the  husband  cannot  be  tacked 
to  that  of  the  widow,1  (a)  unless  the  husband  claimed  the  land 
to  belong  to  his  wife.2  But  in  those  States  where  the  wife, 
by  statute,  is  made  an  heir  of  her  husband,  the  rule  would  be 
different,  as  in  those  cases  she  would  hold  in  the  double  capacity 
of  heir  and  widow.  The  possession  of  a  son  may  be  tacked  to 
that  of  his  father.3  But  in  all  cases  the  several  occupancies  must 
be  so  connected  that  they  can  be  referred  to  the  original  entry, 
and  the  continuity  of  the  possession  must  be  unbroken;  as,  if 
there  has  been  such  a  lapse  in  possession  as  to  raise  a  presumption 
of  abandonment,  the  constructive  seisin  of  the  owner  of  the  legal 
title  will  apply  and  the  possession  must  begin  de  novo;  and  whether 
there  has  been  such  a  lapse  or  not  is  a  question  for  the  jury,  in 
view  of  all  the  circumstances.4  So,  too,  the  successive  occupants 
must  claim  through  their  predecessors;5  and  if  they  claim  inde- 

1  Sawyer  v.  Kendall,  10  Cush.  (Mass.)  241. 

2  Hollon  v.  Whimey,  30  Vt.  405.  But  the  husband  may  tack  the  possession 
of  his  wife  to  his  own.  Steel  v.  Johnson,  4  Allen  (Mass.)  425;  Smith  v.  Garza, 
15  Tex.  150.  And  the  possession  of  a  son-in-law  may  be  tacked  to  that  of 
his  faiher-in-law,  where  he  occupied  for  him.  St.  Louis  v.  Gorman,  29 
Mo.  103. 

3  King  v.  Smith,  1  Rice  (S    C.)  10. 

4  Hood  v.  Hood,  2  Grant's  Cas.  (Penn.)  229;  Andrews  v.  Mulford,  1  Hayw. 
(N.  C.)  320, 

5  Johnston  v.  Nash,  15  Tex.  419. 


{a)  In  the  recent  case  of  Wishart  v. 
McKnight,  178  Mass.  — ,  59  N.  E.  1028, 
the  cited  case  of  Sawyer  v.  Kendall  is 
thus  explained,  and  the  rule  made 
clear  as  to  tacking:  "  Sawyer  v.  Ken- 
dall was  a  case  where  no  continuity  of 
possession  had  been  made  out  by  the 
tenant,  and  the  decision  was  finally 
pat  upon  that  ground.  *  *  *  We 
are  of  opinion  that  that  case  is  to  be 
confined  to  the  point  actually  decided, 
and  cannot  be  held  to  be  an  authority 
for  all  the  statements  in  the  opinions 
in  that  case  and  in  the  cases  cited. 
*  *  *  Where  possession  has  been 
actually  and  in  each  instance  trans- 
ferred by  the  one  in  possession  to  his 
successor,  the  owner  of  the  record  title 
is  barred  from  maintaining  an  action  to 
recover  the  land       In  some  cases  this 


conclusion  has  been  reached  on  the 
ground  that  in  such  a  case  there  is  the 
necessary  privity,  or,  more  properly, 
continuity  of  possession, -between  the 
successive  trespassers,  within  the  doc- 
trine on  which  Sawyer  ?■>.  Kendall  was 
decided."  See  also  Faloon  v.  Sim- 
shauser,  130  111.  649;  Vandall  v.  St. 
Martin,  42  Minn.  163;  Adkins  v.  Tom- 
linson,  121  Mo.  487;  Coogler  v.  Rogers, 
25  Fla.  853,  8S2;  Rowland  v.  Williams, 
23  Oregon,  515;  Shuffleton  v.  Nelson, 
2  Sawyer,  540.  Other  cases  go  further 
still.  See  Willis  v.  Howe,  [1893]  2  Ch. 
545.  553;  Chapin  v.  Freeland,  142  Mass. 
383.  387;  Harrison  v.  Dolan,  172  Mass. 
395.  397;  McNeelv  v.  Langan,  22  Ohio 
St.  32;  Frost  v.  Courtis,  172  Mass.  401; 
13  Harv.  L.  Rev.  52. 


644  STATUTES   OF   LIMITATION.  [CHAP.   XX. 

pendently  the  continuity  is  broken,  and  each  must  stand  upon  his 
own  possession.1 

SEC.   272.   Effect     of     bringing     Ejectment Although     the 

adverse  possession  of  a  defendant  in  ejectment  cannot,  during 
the  pendency  of  the  suit,  ripen  into  an  absolute  title  under  the 
operation  of  the  statute  of  limitations,  yet  the  effect  of  the  statute 
is  neutralized  only  in  respect  to  the  particular  suit  and  the  plain- 
tiff therein.  And  after  the  termination  of  that  suit,  the  statutory 
limitation  having  meanwhile  expired,  no  subsequent  action  can 
be  brought,  either  at  law  or  in  equity,  to  question  that  title  or 
possession;2  and  if  the  plaintiff  fails  therein,  the  period  during 
which  the  action  was  pending  is  not  deducted  from  the  period 
requisite  to  gain  a  title  by  possession. 

1  Menkens  v.  Blumenthal,  27  Mo.  198;  Taylor  v.  Burnside,  1  Gratl.  (Va.)  165; 
Wickliffe  v.  Ensor,  9  B.  Mon.  (Ky.)  253;  Doe  v.  Eslava,  11  Ala.  1028. 
1  Hopkins  v.  Calloway,  7  Coldw.  (Tenn.)  37. 


§  273-]  DOWER.  645 


CHAPTER  XXI. 

Dower. 

Sec.  273.  Not  within  the  Statute,  unless  made  so  expressly. 

SEC.  273.  Not  within  the  Statute,  unless  made  so  expressly.  — 
Except  where  specially  so  provided,  a  widow's  right  to  dower  is 
not  barred  by  the  statutes  of  limitations  in  the  several  States.1 
The  writ  of  dower  unde  nihil  habet  is  a  real  action,  which  lies  for 
the  recovery  of  dower  where  none  has  been  assigned.2  So,  too, 
courts  of  equity  have  concurrent  jurisdiction  with  courts  of  law, 
and  can  both  assign  dower  to  the  widow  and  assess  and  award 
damages;3  and  in  some  of  the  States  courts  of  probate  are  by 
statute  invested  with  this  power,  and  this  statutory  has  taken 
the  place  of  the  common-law  remedy.  The  writ  of  dower  was 
not  within  either  the  statute  of  Henry  VIII.  or  James  I.,  and  the 
only  method  of  avoiding  it  w4as  by  a  fine  levied  by  the  husband, 
or  his  alienee  or  heir,  which,  under  the  statute  of  non-claims, 
barred  the  wife  unless  she  brought  her  action  within  five  years 
after  her  title  accrued,  and  the  removal  of  her  disabilities,  if  any.4 
It  will  not  be  profitable  to  review  the  office,  purposes,  and  nature 
of  writs  of  dower,  as  that  is  not  germane  to  our  subject,  and  also 
because  they  have  been  so  generally  superseded  by  statutory  and 
equitable  remedies,  that  they  are  not  generally  resorted  to  in 
practice.  In  many  of  the  States,  a  widow's  claim  to  dower  is 
expressly  brought  within  either  the  general  statute  of  limitations, 
or  a  special  limitation  is  imposed  by  the  statute  providing  for 
dower.     This  is  the  case  in  Georgia,  where  the  widow's  applica- 

1  Barnard  v.  Edward,  4  N.  H.  107;  Bordly  v.  Clayton,  5  Harr.  (Del.)  154;  May 
v.  Rumney,  1  Mich.  I;  Mitchell  v.  Payas,  1  N.  &  McCord  (S.  C.)  85:  Wakemn 
v.  Roach,  Dudley  (Ga.)  123;  Parker  v.  O'Bear,  7  Met.  (Mass.)  24;  Owen  v. 
Campbell,  32  Ala.  521;   Looke  v.  Hardeman,  7  Ga.  20. 

'Booth  on  Real  Actions,  166;  and  according  to  this  author  there  is  still 
another  writ,  called  the  writ  of  right  of  dower,  which,  however,  is  obsolete,  or 
at  least  seldom  employed  in  practice,  although  it  was  formerly  used  incases 
where  a  part  of  the  dower  had  been  received. 

34  Kent's  Com.  71,  72. 

4  Park  on  Dower,  311. 


646  STATUTES   OF   LIMITATION.  [CHAP.   XXI. 

tion  is  limited  to  seven  years  after  the  husband's  death;1  but 
prior  to  the  act  of  1839  ner  right  was  not  within  the  statute,  and 
was  not  barred  by  the  mere  lapse  of  time.2  In  Iowa,  by  statute, 
the  right  of  dower  is  not  destroyed,  but  the  remedy  for  its 
admeasurement  in  the  County  Court  is  barred  in  ten  years;  but  it 
is  held  that  courts  of  equity  may  assign  it  after  that  time.3  In 
Indiana,  the  widow's  right  of  dower  is  barred  in  twenty  years 
after  her  disabilities,  if  any,  are  removed.4  Such,  also,  is  the 
provision  in  Ohio,  except  that  the  limitation  is  twenty-one  years.5 
In  New  Hampshire,  the  period  of  limitation  is  twenty  years,  and 
the  statute  attaches  from  the  time  when  the  widow's  right  to  a 
writ  of  dower  accrues  after  demand,  and  not  from  the  time  of  her 
husband's  death.6  In  North  Carolina,  it  is  held  that  the  statute 
does  not  apply  until  do  ever  is  assigned,7  and  the  same  rule  also 
prevails  in  Missouri.8  In  Pennsylvania,  the  statute  runs  against 
a  claim  for  dower,  by  action  of  dower,  unde  nihil  habet*  In 
New  York,  a  claim  for  dower  is  barred  absolutely  in  twenty 
years.10  In  New  Jersey,  actions  for  dower  are  held  to  be  within 
the  statute.11  So  in  South  Carolina.12  In  Michigan,  it  is  held 
that  as  dower,  like  other  landed  interests,  can  be  reached  only 
by  the  statutory  action  of  ejectment,  it  is  barred  by  the  statutory 
limitation  upon  that  action.13  In  Arkansas,  it  is  held  that  the 
statute  does  not  run  against  a  widow's  claim  for  dower  while  the 
heirs  of  her  husband  are  in  possession  of  his  lands,  but  that 
the  rule   is  otherwise  where  a  purchaser  is  in  possession.14     In 

1  Locke  v.  Hardeman,  7  Ga.  20. 
'Chapman  v.  Schroeder,  10  Ga.  321. 
3  Starry  v.  Starry,  21  Iowa,  254. 
*  Harding  v.  Third,  etc.,  Church,  20  Ind.  71. 

6  In  Tuttle  v.  Wilson.  10  Ohio,  24,  it  was  held  that  by  the  lapse  of  twenty-one 
years  the  right  of  dower  was  not  only  barred  at  law,  but  also  in  equity. 
G  Robie  v.  Flanders,  33    N.  H.  524. 
'Spencer  1;  Weston.  1  D.  &  B.  (N.  C.)  L.  213. 
8  Johns  v.  Fenton,  88  Mo.  64;   Littleton  v.  Paterson,  32  Mo.  337. 
'Case  v.  Keller,  77  Penn.  St.  487. 

10  Westtall  v.  Westfall,  16  Hun  (N.  Y.)  541. 

11  Berrian  v.  Cnnover,  16  N.  J.  L.  107;  Conover  v.  Wright,  6  N.  J.  Eq.  613, 
reversing  the  same  case,  id.  482,  in  which  it  was  held  that  the  statute  did  not 
a [j ply  I"  flower. 

11  Wilson  v.  Mcl.enoghan,  1  McMull.  (S.  C.)  35;   Ramsay  v.  Dozier,  3  Brev.  (S. 
C.)  246,     But  Bee  Mitchell  v.  Payas.  1  N.  &  McCord  (S.  C.)  85,  contra. 
11  Proctor  v.  Bigelow,  38  Mich.  282. 
11  Livingston  v.  Cochran,  33  Arkansas,  204. 


273-] 


Dower. 


647 


Alabama,  the  statute  applies  to  a  suit  or  proceedings  for  dower, 
whether  the  application  is  made  by  the  widow  or  by  an  heir.1  In 
Massachusetts,  dower  is  now  within  the  statute.2  (a)  In  Mary- 
land, where  until  quite  recently  the  statute  was  almost  identical 
with  the  statute  of  James,  dower  was  held  not  to  be  within  the 
statute;3  but  it  is  within  the  present  statute.  In  England, 
under  the  statute  3  and  4  Wm.  IV.,  c.  27,  no  suit  for  dbwer  can 
be  maintained  unless  brought  within  twenty  years  after  the  death 
of  the  husband,  and  no  action  for  an  account  of  the  rents  and 
profits  of  the  dowable  land  after  six  years. 

1  Farmer  v.  Ray,  42  Ala.  125. 

*  Pub.  Stats.,  c.  124,  §  14.  The  case  of  Parker  v.  Obear,  7  Met.  (Mass.)  24, 
was  decided  in  1848,  before  this  statute  was  adopted. 

3  Watts  v.  Beall,  2  G.  &J.  (Md.U68;  Kiddall  v.  Trimble,  1  Md.  Ch.  143;  Sell 
man  v.  Bovven,  8  G.  &  J.  (Md.)  50. 


(a)  Mass.  Pub.  Stats.,  c.  124,  §  13, 
enabling  a  widow  to  claim  her  interest 
afier  occupying  in  common  with  the 
heirs,  was  held,  in  Hastings  v.  Mace, 
157  Mass.  499,  not  to  bar  a  widow  who 
had  for  more  than  twenty  years  occu- 
pied with  his  heirs  land  of  which  her 
husband  died  seised,  and  she  was  held 
entitled  to  petition  for  the  assignment 
of  her  dower  when,  after  the  expiration 
ol  twenty  years,  the  heirs  sought  to  hold 
the  land  in  severalty.  But  where  the 
widow  had  not  continued  to  occupy  the 
lands  with  the  heirs  or  devisees  of  her 
deceased  husband,  or  to  receive  her 
share  of  the  rents,  issues,  and  profits, 


and  where  the  land  has  passed  into  the 
hands  of  a  bona  fide  purchaser  for 
value  without  notice  of  her  claim  or 
right,  or  of  the  fact  that  she  occupied 
or  received  the  rents  with  her  hus- 
band's heirs  or  devisees,  her  action 
cannot  be  maintained  unless  com- 
menced within  twenty  years  after  her 
husband's  death.  O'Gara  v.  Neylon, 
161  Mass.  140.  See  Smith  v.  Shaw, 
150  Mass.  297;  Osborn  v.  Weldon,  146 
Mo.  185;  Winters  v.  De  Turck,  133 
Penn.  St.  359;  Lyebrook  v.  Hall,  73 
Miss.  509;  Thompson  v.  McCorkle, 
163  Ind.  334. 


648  STATUTES   OF   LIMITATION.  [CHAP.   XXIU 


CHAPTER  XXII. 

Effect  of  Fraud. 

Sec.  274.  Statutory  Provisions  as  to.         Sec.  276.   Instances  in  which  the  Stat- 
275.   Equitable    Rule  in   Cases  of  ute     will     not     run     until 

Concealed  Fraud.  Fraud  discovered. 

Sec.  274.  Statutory  Provisions  as  to.  —  In  many  of  the  States 
it  is  now  expressly  provided  that,  where  the  cause  of  action  is 
fraudulently  concealed,  or  where  it  arises  from  fraud,  the  statute 
shall  not  begin  to  run  except  from  the  time  of  its  discovery,  as  in 
Maine,  Massachusetts,  Connecticut,  Alabama,  Georgia,  Indiana, 
Illinois,  Mississippi,  Maryland,  Michigan,  and  New  Mexico. 
In  New  Mexico,  however,  the  saving  is  restricted  to  cases  where 
the  cause  of  action  originated  in  or  arises  out  of  a  trust.  In 
Iowa,  Colorado,  Florida,  Kentucky,  North  Carolina,  South 
Carolina,  Wisconsin,  Kansas,  Missouri,  Minnesota,  New  York, 
Ohio.  Nebraska,  Nevada,  California,  Arizona,  Dakota,  Utah, 
Idaho,  Montana,  New  Mexico,  and  Wyoming,  provision  is  made 
that  in  bills  or  actions  for  relief  on  the  ground  of  fraud,  the  cause 
of  action  shall  not  be  deemed  to  have  accrued  until  the  discovery 
of  the  fraud.  In  the  first  eleven  States  named,  the  questions 
growing  out  of  the  fraudulent  concealment  of  the  cause  of  action 
are  set  at  rest  by  the  statute.  But  in  the  last-named  States  and 
territories,  inasmuch  as  the  statute  makes  express  provision  for  a 
saving  only  in  cases  where  a  court  of  equity,  or  courts  of  law 
clothed  with  equitable  powers,  can  give  relief,  and  only  in  favor 
of  bills  and  actions  for  such  relief,  it  would  seem  to  follow,  under 
the  well-settled  rules  for  the  construction  of  statutes,  that  the 
fraudulent  concealment  of  the  cause  of  action,  or  the  non-dis- 
covery of  the  fraud  for  which  an  action  would  lie,  affords  no 
excuse  for  the  delay  of  the  plaintiff  in  an  action  at  law  in  bring- 
ing his  action,  and  that  he  can  only  obtain  relief  through  the 
interposition  of  a  court  of  equity,  or  the  equitable  powers  of 
courts  of  Law,  in  such  cases  as  come  within  the  scope  of  equitable 
rel  ef.  In  Vermont,  Rhode  Island,  New  Hampshire,  Louisiana, 
New  Jersey,  Arkansas,  Delaware,  Pennsylvania,  Texas,  and 
Tennessee,  no  statutory  provision   upon  this  subject  exists.      In 


§  274-]  EFFECT   OF   FRAUD.  649 

Virginia  and  West  Virginia,  the  statute  provides  that  if  a  person 
shall,  etc.,  ''  or  by  any  other  indirect  means  obstruct  the  prosecu- 
tion of  such  right,"  etc.  And  it  is  held  that,  when  the  facts 
upon  which  the  action  is  founded  are  exclusively  within  the 
knowledge  of  the  defendant,  and  he  fraudulently  concealed  them, 
he  thereby  obstructs  the  prosecution  of  the  right  within  the  mean- 
ing of  the  statute.1  But  in  Missouri,  under  a  somewhat  similar 
statute,  it  was  held  that  the  statute  did  not  apply  to  concealment 
or  improper  acts  by  other  persons  than  the  debtor.2 

In  some  of  the  other  States  in  which  no  statutory  provision 
exists  upon  this  subject,  it  has  been  held  that  in  the  case  of 
fraud,  and  the  wilful  suppression  of  the  truth,  the  statute  does 
not  begin  to  run  at  law  until  its  discovery.3  But  the  statute  is 
put  in  motion  as  soon  as  the  fraud  is  discovered,  although  its  full 
extent  or  all  the  facts  are  not  known.4  In  Massachusetts,  before 
the  present  statutory  exception  existed,  the  fraudulent  conceal- 
ment of  a  cause  of  action  was  held  to  be  a  good  replication  to  a 
plea  of  the  statute.5  In  Maine,  also,  this  rule  was  adopted.6 
The  doctrine  of  these  cases  was  predicated  upon  a  dictum  of  Lord 
Mansfield,  in  an  English  case;7  but  this  dictum  seems  never  to 

1  Vanbibber  v.  Bierne,  6  W.  Va.  16S. 

2  Wells  v.  Halpin,  59  Mo.  92. 

3  Pennock  v.  Freeman,  1  Watts  (Penn.)  401;  Jones  v.  Conavvay,  4  Yeates 
(Penn.)  109;  Rush  v.  Barr,  1  Watts  (Penn.)  no;  Morgan  v.  Tener.  83  Penn.  St. 
305:  Wickersham  v.  Lee,  83  id.  416;  Peck  v.  Bank  of  America,  16  R.  I.  710; 
Thompkins  v.  Hollister,  60  Mich.  470;  Moyle  v.  Landers,  83  Cal.  579;  Norris  v. 
Margin,  136  U.  S.  386;  Purdon  v.  Seligman,  78  Mich.  132;  Lawrence  v.  Norreys, 
L.  R.  15  App.  Cas.  210;  Teall  v.  Slaven,  40  Fed.  Rep.  774;  Fisher  v.  Tuller,  122 
Ind.  31;  Fills  v,  Beardsley,  8  N.  Y.  Sup.  567;  Carrier  v.  Chicago,  etc.,  R.  R. 
Co.,  79  Iowa,  80. 

4  Ferris  v.  Henderson,  12  Penn.  St.  49;  Bricker  v.  Lightner,  40  id.  199.  In 
Miller  v.  Wood,  116  N.  Y.  351,  41  Hun,  600,  an  action,  brought  to  recover 
money  as  damages  on  the  ground  of  fraud,  was  held  barred  by  limitation  if  not 
brought  within  six  years  after  the  perpetration  of  the  fraud.  It  is  within  the 
exception  in  the  provision  declaring  that  "  in  an  action  to  procure  a  judgment, 
other  than  for  a  sum  of  money,  on  the  ground  of  fraud,"  the  cause  of  action 
"  is  not  deemed  to  have  accrued  until  the  discovery  by  the  plaintiff,  or  the  per- 
son under  whom  he  claims,  of  the  facts  constituting  the  fraud." 

5  Massachusetts  Turnpike  Co.  v.  Field,  3  Mass.  201;  Farnam  v.  Brooks,  9 
Pick.  (Mass.)  212;  Wells  v.  Fish,  3  Pick.  (Mass.)  74;  Homer  v.  Fish,  1  id.  435. 
See  also  Douglas  v.  Elkins,  28  N.  H.  26;  Way  v.  Cutting,  20  id.  187;  Campbell 
v.  Vining,  23  111.  525;  Hugh  v.  Jones,  35  Ga.  40. 

6  Cole  v.  McGlathry,  9  Me.  131;  McKown  :/.  Whittemore,  31  id.  448. 

1  Bree  v.  Holbech,  Doug.  654.     See  also  Brown  v.  Howard,  3  B.  &  B.  73. 


650  STATUTES   OF   LIMITATION.  [CHAP.   XXII. 

have  been  followed  in  the  English  cases  in  actions  at  law,1  nor 
do  the  American  cases  before  cited  seem  to  have  been  generally 
followed  in  this  country.  The  courts  of  New  York  repudiated 
this  doctrine  at  an  early  day,  so  far  as  it  made  fraud  a  replication 
to  the  statute  in  courts  of  law;1  and  such  also  was  the  case  in 
Kentucky,3  Mississippi,4  Virginia,5  Tennessee,6  North  Carolina,7 
and  South  Carolina.8  In  England,  this  question  is  decisively  put 
at  rest  by  a  provision  of  the  statute,9  to  the  effect  that  the  right 
of  a  party  to  bring  a  suit  in  equity  for  the  recovery  of  any  land 
or  rent  of  which  he  or  any  person  through  whom  he  claims  may 

1  Brooksbank  v.  Smith,  2  Y.  &  C.  58;  Imperial  Gas  Light  Co.  v.  London  Gas 
Co.,  10  Exch.  39.  See,  in  this  country,  Pyle  v.  Beckwith,  1  J.  J.  Mar.  (Ky.) 
445;  Wilson  v.  Ivey,  32  Miss.  233;  Callis  v.  Waddy,  2  Munf.  (Va.)  511;  Rice  v. 
White.  4  Leigh  (Va.)  474;  Cox  v.  Cox,  6  Rich.  (S.  C.)  Eq.  275;  York  v.  Bright, 
4  Humph.  (Tenn.)  312;   Hamilton   v.  Smith,  3  Murph.  (N.  C.)  115. 

'Troupe  v.  Smith,  20  Johns.  (N.  Y.)  33;  Leonard  v.  Pitney,  5  Wend.  (N.  Y.) 
30;  Humbert  v.  Trinity  Church,  24  id.  587;  Allen  v.  Mille,  17  id.  202.  In  Bosley 
v.  Nat.  Machine  Co.,  123  N.  Y.  550,  il  was  held  thai  the  provision  of  the  statute 
of  limitation,  declaring  that  "  an  action  10  procure  a  judgment,  other  than  for 
a  sum  of  money,  on  the  ground  of  fraud,  in  a  case  which  was  cognizable  by 
the  Court  of  Chancery,  is  not  deemed  to  have  accrued  until  the  discovery  by 
the  plaintiff,  or  the  person  under  whom  he  claims,  of  the  facts  constituting  the 
fraud,"  applies  to  all  cases  formerly  cognizable  by  the  Court  of  Chancery, 
whether  the  jurisdiction  therein  was  exclusive  or  concurrent  with  that  of  courts 
of  law;  that  it  applies  when  any  remedy  or  relief  is  sought  for,  aside  fiom  a 
mere  money  judgment,  and  which  a  court  of  law  could  not  give,  although  as  a 
mere  part  of  the  relief  sought  a  money  judgment  is  demanded;  and  that  the 
fact  that  in  such  an  action  the  plaintiff  asks  for  a  money  judgment  for  the 
amount  paid  him  on  subscribing,  does  not  lake  it  out  of  said  provision,  and 
the  statute  does  not  commence  to  run  until  after  the  discovery  of  the  fraud. 

3  Pyle  v.  Beckwith,  1  J.  J.  Mar.  (Ky.)  445;  Salve  v.  Ewing,  1  Duv.  (Ky.)  271. 
In  Ellis  v.  Kelso,  18  B.  Mon.  (Ky.)  296,  where  a  clerk  made  a  fraudulent  entry 
upon  his  employer's  books,  it  was  held  that  the  statute  ran  from  the  date  of 
entry. 

4  In  Wilson  v.  Ivey,  32  Miss.  233,  the  court  held  that,  in  case  of  fraud,  the 
statute  begins  to  run  from  the  time  of  its  commission,  and  not  from  the  time 
the  injury  arising  from  it  is  established. 

6  In  Rice  v.  White,  4  Leigh  (Va.)  474,  an  action  for  deceit  was  held  to  arise 
from  the  time  of  its  commission.     Callis  v.  Waddy,  2  Munf.  (Va.)  511. 

6  York  v.  Bright,  4  Humph.  (Tenn.)  312.  See  also,  to  same  effect,  Smith  v. 
Bishop,  9  Vt.  no;   Fee  v.  Fee,  10  Ohio,  469. 

1  Hamilton  v.  Smith,  3  Murph.  (N.  C.)  115. 

'  In  Miles  v.  Berry,  1  Hill  (S.  C.)  296,  where  the  maker  of  a  note  secretly  and 
fraudulently  obtained  possession  of  il,  and  kept  it  until  the  statute  had  run 
upon  it,  it  was  held  that  the  fraud  of  the  maker  did  not  save  the  statute. 

9  See  Appendix,  3  &  4  Wm.  I V.,  $  26. 


■§  2/5-]  EFFECT   OF   FRAUD.  65 1 

have  been  deprived  by  such  fraud,  shall  be  deemed  to  have 
accrued  at,  and  not  before,  the  time  when  such  fraud  by  reason- 
able diligence  might  have  been  discovered.  It  is  unfortunate 
that  in  this  country  the  legislatures  of  all  the  States  have  not  put 
this  question  at  rest  by  some  decisive  provision  instead  of  leav- 
ing it  to  judicial  legislation,  because,  when  the  courts  engraft 
upon  these  statutes  exceptions  which  the  statute  does  not  make 
or  warrant,  its  action  is  nothing  more  nor  less  than  an  assumption 
of  legislative  functions.  The  cause  of  action,  except  where  the 
statute  otherwise  provides,  in  cases  of  fraud,  arises  from  the  time 
of  its  commission;  and  when  courts  of  law  hold  to  the  contrary, 
it  is  by  force  of  a  judicial  exception  engrafted  upon  the  statute, 
by  the  assumption  of  legislative  and  equitable  powers,  and  is  not 
warranted  by  any  principle  or  rule  of  law,  nor  can  it  be  supported 
by  any  known  rule  for  the  construction  of  statutes.1 

Sec.  275.  Equitable  Rule  in  Cases  of  Concealed  Fraud. — 
Courts  of  equity,  independently  of  any  statute,  will  relieve  against 
fraud,  if  proceedings  are  seasonably  brought  after  its  discovery.2 
Indeed,  to  use  the  language  of  Lord  (Tottenham,  a  court  of  equity 
will  wrest  property  fraudulently  acquired,  not  only  from  the  per- 
petrator of  the  fraud,  but  "  from  his  children  and  his  children's 
children,"  or,  as  was  said  in  another  English  case,3  "from  any 
persons  to  whom  he  may  have  parcelled  out  the  fruits  of  his 
fraud."  But  the  party  seeking  relief  must  state  in  his  bill  or 
complaint  the  non-discovery  of  the  fraud  until  within  the  proper 
period.4 

1  See  opinion  of  Spencer.  J.,  in  Troupe  v.  Smith,  supra. 

s  Hovenden  v.  Lord  Annesley,  2  Sch.  &  Lef.  629;  South  Sea  Co.  v.  Wymond- 
sell,  3  P.  Wms.  143;  Shields  v.  Anderson,  3  Leigh  (Va.)  729;  Longworth  v. 
Hunt,  11  Ohio  St.  194;  Prescott  v.  Hubbell,  1  Hill  (S.  C.)  210;  Donnelly  v. 
Donnelly,  8  B.  Mon.  (Ky.)  113;  Heywood  v.  Marsh,  6  Yerg.  (Tenn.)  69;  Currey 
v.  Allen,  34  Cal.  234;  Croft  v.  Arthur,  3  Desaus.  (S.  C.)  223;  Mattock  v.  Todd, 
25  Ind.  128;  Stocks  v.  Van  Leonard,  8  Ga.  511;  Sears  v.  Shafer,  6  N.  Y.  268. 

3  Hueguenin  v.  Beasley,  14  Ves.  273.  See  also  Bridgman  v.  Green,  Wilmot's 
notes.  58. 

4  South  Sea  Co.  v.  Wymondsell,  supra;  Sublette  v.  Tinney,  9  Cal.  423.  Thus, 
in  Lott  v.  De  Graffenreid,  10  Rich.  (S.  C.)  Eq.  346,  it  was  held  that  a  creditor's 
bill  to  set  aside  fraudulenl  conveyances  of  the  debtor  is  barred  bv  the  lapse  of 
four  years  from  the  execution  of  the  deeds,  unless  it  be  averred  in  the  bill  that 
the  fraud  was  not  discovered  till  within  four  years  before  the  bill  was  filed. 
The  statute  runs  against  a  suit  in  equity  by  creditors,  to  set  aside  a  voluntary 
conveyance  by  their  debtor,  from  the  time  of  notice  to  them  of  the  conveyance. 


652  STATUTES   OF   LIMITATION.  [CHAP.   XXII. 

The  equity  jurisdiction  of  the  courts  of  the  United  States  is 
the  same  as  that  of  the  High  Court  of  Chancery  in  England,  is 
not  subject  to  limitation  or  restraint  by  State  legislation,  and 
is  uniform  throughout  the  different  States  of  the  Union.1  And 
in  those  courts  it  is  an  established  rule  of  equity  that  where  relief 
is  asked  on  the  ground  of  actual  fraud,  especially  if  the  fraud  has 
been  concealed,  that  time  will  not  run  in  favor  of  the  defendant 
until  the  discovery  of  the  fraud,  or  until,  with  reasonable  dili- 
gence, it  might  have  been  discovered.2  The  equitable  jurisdic- 
tion of  these  courts  over  controversies  between  citizens  of  different 
States  cannot  be  impaired  by  the  laws  of  the  State  which  pre- 
scribe the  modes  of  redress  in  their  court,  or  which  regulate  the 
distribution  of  their  judicial  power.3  And  while  legal  remedies 
are  sometimes  modified  to  suit  the  changes  in  the  laws  of  the 
States  and  the  practice  of  their  courts,  it  is  not  so  with  equitable 
remedies.*  The  equity  practice  of  the  federal  courts  is  the  same 
in  every  State,  and  they  demonstrate  the  same  system  of  equity 
rules  and  equity  jurisdiction  throughout  the  whole  of  the  United 
States,  without  regard  to  State  laws.5  In  California,  it  is  held 
that  the  statute  operates  a  saving  in  favor  of  actions  for  relief  on 
the  ground  of  constructive  fraud.6  The  species  of  fraud  against 
which  a  court  of  equity  will  give  relief,  although  an  action  there- 
for is  barred  at  law,  must  be  distinct  in  its  characteristics.7     In 

and  the  want  of  consideration.  Eigleberger  v.  Kibler,  1  Hill  (S,  C.)  Ch.  113; 
White  v.  Poussin,  x  Bailey  (S.  C.)  Ch.  458.  Where  a  broker  falsely  represented 
to  a  party  for  whom  he  undertook  to  invest  money  upon  a  good  bond,  well 
secured  by  mortgage,  that  the  security  was  ample,  it  was  held  that  the  right  of 
action  arose  when  it  was  discovered  and  the  insecurity  of  the  bond  and  mort- 
gage ascertained,  and  that  no  suit  in  law  or  equity  could  be  maintained  after 
the  time  limited  for  such  suits  by  the  statute  of  limitations.  Turnbull  v.  Gads- 
den, 2  Strobh.  (S.  C.)  Eq.  14.  Upon  a  bill  brought  to  set  a^ide  a  sheriff's  deed 
on  the  ground  that  the  purchase  was  fraudulent,  the  statute  was  held  to  run 
from  the  date  of  the  purchase.     Cox  v.  Cox,  6  Rich.  (S.  C.)  Eq.  275. 

1  Robinson  v.  Campbell,  3  Wheat.  (U.  S.)  212;  Kirby  v.  Lake  Shore,  etc.,  R. 
Co.,  120  U.  S.  130. 

''  Meder  v.  Norton,  11  Wall.  (U.  SO442;  Kirby  :■.  Lake  Shore,  etc.,  R.  Co., 
120  U.  S.  130. 

3  Payne  v.  Hook,  7  Wall.  (U.  S.)  430. 

1  Harlan,  J.,  in  Kirby  v.  Lake  Shore,  etc.,  R.  Co.,  supra. 

'  Payne  v.  Hook,  7  Wall.  (U.  S.)  430;  Green  v.  Creighton,  23  How.  (U.  S.)  90; 
Rosenthal  v.  Walker,  m  U.  S.  185;  United  States  c.  Hovvland,  4  Wheat.  (U. 
S.)  to 

'  Boyd  v.  I'hinkman,  2<)  Cal.  10, 

1  Dean  v.  Thwaite,  21  Bcav.  G21;   Pctre  v.  Petre,  1  Drew.  397. 


§  275-]  EFFECT    OF    FRAUD.  653 

England,  under  the  statute  of  3  and  4  Wm.  IV.,  it  has  been  held 
that  a  possession  through  a  conveyance  from  a  lunatic  is  not 
necessarily  fraudulent,1  but  that  the  rule  is  otherwise  where  mala 
fides  on  the  part  of  the  purchaser  is  shown;2  but  the  mere  fact 
that  the  grantee  is  aware  of  a  flaw  in  his  title  is  not  such  a  case 
of  fraud  as  takes  the  case  out  of  the  statute.3  In  equity,  where 
there  is  a  fraudulent  concealment  of  a  cause  of  action,  the  statute 
commences  running  from  the  time  it  is  discovered;  but  where 
the  right  depends  on  recorded  instruments,  there  must  be  such 
misrepresentations  as  to  prevent  an  examination  of  the  records.4 
Nor,  generally,  will  equity  interfere  in  a  case  where  the  party 
seeking  relief  might,  by  the  exercise  of  proper  diligence,  have  dis- 
covered the  fraud.5  Where  an  estate  was  intentionally  omitted 
from  an  insolvent's  schedule,  it  was  considered  an  instance  of 
concealed  fraud.6  The  court  will  not  enter  into  the  question  how 
far  a  fraud  has  been  in  effect  concealed,  owing  to  the  exceptional 
dulness  of  the  lawful  claimant's  intellect;7  and  where  the  question 
of  fraud  is  raised,  but  there  is  a  doubt  of  its  existence,  the  court 
will  not  be  inclined  to  presume  it  at  a  great  distance  of  time,  but 
will  require  strong  prima  facie  evidence.8     The   reason  why,  if 

1  Price  »,  Berrineton,  3  Mac.  &  G.  4S6;   Manby  v.  Bewicke,  3  K.  &  J.  342. 

2  Lewes  v.  Thomas,  3  Hare,  26.  See  also  Crovvther  v.  Rowlandson,  27  Cal. 
376,  where  it  was  held  that  the  statute  does  not  commence  to  run  against  the 
right  to  have  a  deed  set  aside  on  the  ground  of  the  grantor's  insanity,  and  fraud 
on  the  part  of  the  grantee,  until  the  grantor  recovers  his  reason.  Arrington  v. 
McLemon,  33  Ark.  759. 

3  Langley  v.  Fisher,  9  Beav.  90;   Bellamy  z.  Sabine,  2  Phil.  425. 

4  Haynie  v.  Hall,  5  Humph.  (Tenn.)  220. 

5  Thus,  where  a  register-book  containing  a  certificate  of  marriage,  which 
formed  a  principal  link  in  the  title  of  the  plaintiff,  had  been  fraudulevtly  muti- 
lated, it  was  held  upon  demurrer  that  as  the  fraud  could  have  been  discovered 
earlier  with  proper  diligence,  the  bill  was  too  late.  In  this  case,  the  claim  had, 
in  fact,  lain  dormant  for  nearly  one  hundred  and  fifty  years.  Chetham  v.  Hoare, 
L.  R.  9  Eq.  571. 

6Sturgis  v.  Morse,  24  Beav.  541. 

'  Manby  v.  Bewicke,  3  K.  &  J.  342;   Bridgman  v.  Gill,  24  Beav.  302. 

8  Charter  v.  Trevelyan,  4  L.  J.  N.  S.  Ch.  239,  n  CI.  &  Fin.  714;  Bonney  v. 
Ridgard,  ciled  in  17  Ves.  97.  "  Length  of  time,"  said  Story,  J.,  "  necessarily 
obscures  all  human  evidence;  and  as  it  thus  removes  from  the  parties  all  the 
immediate  means  to  verify  the  nature  of  the  original  transaction,  it  operates  by 
way  of  presumption  in  favor  of  innocence  and  against  the  imputation  of  fraud." 
Prevost  v.  Gratz,  6  Wheat.  (U.  S.)  4S1.  In  Marquis  of  Clanricarde  v.  Hen- 
ning,  30  Beav.  175,  a  bill  to  impeach  a  purchase  by  a  solicitor  from  his  client 
was  deemed  too  late  after  forty  years.. 


654                                   STATUTES   OF   LIMITATION.  [CHAP.   XXII. 

fraud  has  been  concealed  by  one  party,  and  until  it  has  been  dis- 
covered by  the  other,  the  statute  should  not  operate  as  a  bar,  is, 
that  it  ought  not  in  conscience  to  run ;  the  conscience  of  the  party 
being  so  affected  that  he  ought  not  to  be  allowed  to  avail  himself 
of  the  length  of  time.1  (a)     In  many  of  the  States,  a  certain  period 

1  Hovenden  v.  Annesley,  supra. 

(a)  Under  section  26  of  this  statute,  tion  for   six    years  next  after  the  last 

it  is  not  enough   in   England  to  prove  cent  of  the  plaintiff's  property  was  ob- 

concealed  fraud,  but  the  plaintiff  must  tained  by  the  defendant,   the  plaintiff 

also  show  that  it  was  intentionally  con-  is  without  remedy  when    her  eyes  are 

cealed,  resulting   in    depriving  him  of  opened;  on    the    contrary,    we    are    of 

the    land   sought  to  be  recovered,  and  opinion   that,  in   such  a  case,  there  is 

that    the    fraud    could    not    have    been  concealment    of    the    fraud,    and    the 

known    or    discovered     by     reasonable  plaintiff  can  sue  within  six  years  after 

diligence   during   the  statutory  period  she  discovers  that  she  has  been  a  uped. 

before  suit  is    brought.     Lawrence   v.  Manufacturers'    Bank    v.     Perry,     144 

Norreys,  15  A.  C.  210;  Moore  v.  Knight,  Mass.     313.     It    does    not    lie    in    the 

[1891]  1  Ch.  547;  Willis  v.  Howe,  [1893]  mouth  of  a  defendant  who  has  fraudu- 

2  Ch.   545;    Betjemann    v.   Beljemann,  lentlv  succeeded  in  bringing  a  plaintiff 

[1895]   2   Ch.  474;    Re  Arbitration   Be-  under  such  a  delusion   to  set  up  that 

tween  the  Ashley  and  Tildesley  Coal  the  plaintiff  had  means  of  ascertaining 

Cos.,  80  L.  T.  116.     See  Amy  v.  Water-  the  truth." 

town,  130  U.  S.  320,  324.     "  Concealed  Although    the    equity    rule    that,    in 

fraud"   under    the    above    section   26,  cases  of  fraud,  limitation  begins  to  run 

must  be  the  fraud   of  the  person   who  not  at  the  time  of  its  perpetration,  but 

set    up    the    statute,    or   of    some    one  at  the  time  of  its  discovery,  cannot  be 

through  whom  he  claims.     In  re  Mc-  maintained  to  the  same  extent  in  ac- 

Callum,  [1901]  1  Ch.  143.  tions  at  law,  yet  there  appears  to  be  no 

The  statute  of  limitations  has  no  ap-  good  reason  why  equity  and  law  should 

plication  even  at  law  to  a  secret  steal-  be  so  far  apart  as  to  forbid  a  court  of 

ing  of  coal  by  a    wilful,    underground  law   taking    the   same    starting    point, 

trespass,  prior  to  its  discovery.      Bulli  when  active  additional  fraud   has  pre- 

Coal  Mining  Co.  v.  Osborne,  [1899]  A.  vented  such  discovery.     See  Reynolds 

C.  351;   Levvey  v.  Fricke  Coke  Co.,  166  v.  Hennessy,  17  R.  I.  169,  178. 

Penn.    St.   536,   45    Am.    St.    Rep.   684,  In  the  case  of  official  bonds,  defalca- 

and   n.     See  supra,  §    178,   n.   (a).     In  lion  and  concealed  fraud  on  the  princi- 

some  of   the  States,  as,  e.g.,  in  Ohio,  pal's   part    will    deprive   his   surety  as 

such   underground  trespasses  are  spe-  well   as   himself   of   the  benefit  of  the 

cially    provided    for   in    the   limitation  statute  of  limitations,  which,  as  to  both, 

acts;  the  Ohio  provision  (§  4982)  is  that  begins    to   run  only  when  the  fraud   is 

"  in     an     action     for     trespass     under-  discovered.     Lieberman  v.   First    Nat. 

ground  or  injury  to  mines,  the  action  Bank  (Del.),  45  Atl.   901,  904.     As    to 

shall  not  be  deemed   to  have  accrued  fraudulent  concealment  of  the  cause  of 

until  the  wrong-doer  is  discovered."  action,  see  also  Shellenberger  v.  Ran- 

In  the  recent  case  of  Dean  v.  Ross,  som  (Neb.),  25  L.  R.  Ann.  564,  and  n.; 
178  Mass.  — ,  60  N.  E.  119,  where  the  Peck  v.  Bank  of  America  (16  R.  I.  no), 
plaintiff  had  a  verdict  for  $10,493  for  7  id.  826,  and  n.;  Manufacturers'  Bank 
the  conversion  of  fifteen  bonds  of  the  v.  Perry,  144  Mass.  313;  Abbott  v. 
par  value  of  $500  each  by  the  defend-  North  Andover,  T45  Mass.  484;  San- 
ant,  a  spiritualist  medium,  the  court  born  v.  Gale,  162  Mass.  412;  Graham 
said  "  We  <lo  not  agree  with  the  de-  v.  Stanton,  177  Mass.  321;  Lewey  v. 
fendant's  contention  that  if  a  defend-  Fricke  Coke  Co.,  supra;  Dorsey  Ma- 
ant,  who  falsely  represents  that  the  chine  Co.  v.  McCaffrey,  139  Ind.  545; 
spirit  of  a  dead  husband  speaks  Toole  v.  Johnson  (S.  C.),  39  S.  E.  254; 
through  thr;  defendant's  lips,  and  Cox  v.  Von  Ahlefeldt  (La.),  30  So. 
thereby  obtains  the  plaintiff's  property,  175;  34  Am.  L.  Reg.  (N.  S.)  462;  infra, 
is  successful   in  continuing  the  decep-  §  276,  n.  (a). 


§  275-]  EFFECT   OF   FRAUD.  655 

after  the  discovery  of  the  fraud  is  fixed  within  which  an  action 
for  relief  must  be  brought;  but  where  no  period  is  fixed  a  delay- 
beyond  the  statutory  period  will  be  fatal.1 

In  the  United  States  courts  the  equity  jurisdiction  of  those 
courts  is  not  subject  either  to  limitation  or  restraint  by  State 
legislation,  and  is  uniform  throughout  the  different  States  of  the 
Union.2 

The  statute  of  New  York  upon  limitations  does  not,  then 
affect  the  power  and  duty  of  the  court  below — following  the 
settled  rules  of  equity  —  to  adjudge  that  time  did  not  run  in 
favor  of  defendants,  charged  with  actual  concealed  fraud,  until 
after  such  fraud  was  or  should  with  due  diligence  have  been  dis- 
covered. Upon  any  other  theory  the  equity  jurisdiction  of  the 
courts  of  the  United  States  could  not  be  exercised  according  to 
rules  and  principles  applicable  alike  in  every  State.  It  is 
undoubtedly  true,  as  announced  in  adjudged  cases,  that  courts 
of  equity  feel  themselves  bound,  in  cases  of  concurrent  juris- 
diction, by  the  statutes  of  limitation  that  govern  courts  of  law 
in  similar  circumstances,  and  that  sometimes  they  act  upon  the 
analogy  of  the  like  limitation  at  law.     But  these  general  rules 

1  In  Bailey  v.  Glover,  21  Wall.  (U.  S.)  342,  347,  the  court  said:  "  To  hold  that 
by  concealing  fraud  or  by  committing  a  fraud  in  a  manner  that  concealed 
itself  until  such  time  as  the  party  committing  the  fraud  could  plead  the  statute 
of  limitations  to  protect  it,  is  to  make  the  law  which  was  designed  to  prevent 
fraud  the  means  by  which  it  is  made  successful  and  secure."  See  Traer  v. 
Clews,  115  U.  S.  338.  In  Kirby  v.  Lake  Shore,  etc.,  R.  Co.,  120  U.  S.  130, 
Harlan,  J.,  says:  "  It  is  an  established  rule  of  equity,  as  administered  in  the 
courts  of  the  United  States,  that  where  relief  is  asked  on  the  ground  of  actual 
fraud,  especially  if  such  fraud  has  been  concealed,  time  will  not  run  in  favor  of 
the  defendant  until  the  discovery  of  the  fraud,  or  until  with  reasonable  dili- 
gence it  might  have  been  discovered."  See  Kneeder  v.  Norton,  ri  Wall.  (U. 
S.)442;  Prevost  v.  Gratz,  6  Wheat.  (U.  S.)  481;  Michoud  v.  Girod,  4  How.  (U_ 
S.)  503;  Vesey  v.  Williams,  8  id.  149;  Brown  v.  Buena  Vista,  95  U.  S.  157; 
Rosenthal  z>.  Walker,  in  U.  S.  190. 

2  Robinson  v.  Campbell,  3  Wheat.  (U.  S.)  212;  Boyle  v.  Zachary,  6  Pet.  (U. 
S.)  658;  Livingston  v.  Story,  9  id.  656;  Stearns  v.  Page,  7  How.  (U.  S.)  8rg; 
Russel  v.  Southard,  12  id.  147;  Neves  v.  Scott,  13  id.  272;  Barber  v.  Barber,  21 
id.  572;  Green  v.  Creighton,  23  id.  105;  Kirby  v.  Lake  Shore,  etc.,  R.  Co.,  120 
U.  S.  130.  In  Burke  v.  Smith,  16  Wall.  (U.  S.)  401,  where  the  local  statute 
prescribed  six  years  for  the  commencement  of  actions  for  fraud,  the  court  said: 
V  We  think  a  court  of  equity  will  not  be  moved  to  set  aside  a  fraudulent  trans- 
action at  the  suit  of  one  who  has  been  quiescent  during  a  period  longer  than 
that  fixed  by  the  statute  of  limitations,  after  he  had  knowledge  of  the  fraud,  or 
after  he  was  put  upon  inquiry  with  the  means  of  knowledge  accessible  to  him." 


656  STATUTES   OF   LIMITATION.  [CHAP.   XXII. 

must  be  taken  subject  to  the  qualification  that  the  equity  juris- 
diction of  the  courts  of  the  United  States  cannot  be  impaired  by 
the  laws  of  the  respective  States  in  which  they  sit.  It  is  an 
inflexible  rule  in  those  courts,  when  applying  the  general  limita- 
tion prescribed  in  cases  like  this,  to  regard  the  cause  of  action  as 
having  accrued  at  the  time  the  fraud  was  or  should  have  been  dis- 
covered, and  thus  withhold  from  the  defendant  the  benefit,  in 
the  computation  of  time,  of  the  period  during  which  he  concealed 
the  fraud.  It  results  that  even  if  this  be  not  an  action  "  to  pro- 
cure a  judgment,  other  than  for  a  sum  of  money,  on  the  ground 
of  fraud,"  within  the  meaning  of  the  New  York  Code  of  Pro- 
cedure, the  limitation  of  six  years,  being  applied  here,  does  not, 
as  adjudged  below,  commence  from  the  commission  of  the  alleged 
frauds. 

Without  inquiring  whether  the  plaintiff  was  not  guilty  of  such 
gross  laches,  in  applying  for  relief,  as  deprived  him  of  all  right  to 
the  aid  of  equity,  and  giving  him  the  benefit  of  the  limitation  of 
six  years,  to  be  computed  from  the  discovery  of  the  fraud,  there 
seems  to  be  even  then  no  escape  from  the  conclusion  that  the 
suit  was  not  brought  in  time.  Seven  years,  lacking  only  seven 
days,  elapsed  after  the  discovery  of  the  frauds  by  the  plaintiff's 
testator  before  suit  was  brought. 

Sec.  276.  Instances  in  which  the  Statute  will  not  run  until 
Fraud  discovered.  —  In  order  to  avail  himself  of  the  rule  as  to 
concealed  fraud,  to  excuse  delay  in  bringing  an  action,  the  bill  or 
complaint  should  set  forth  the  nature  of  the  transaction  fully, 
and  also  the  acts  of  concealment,  and  the  time  of  its  discovery.1 

The  provision  that  if  a  person  liable  to  an  action  shall  conceal 
the  fact  from  the  knowledge  of  the  person  entitled  thereto,  the 
action  may  be  commenced  at  any  time  within  the  period  of  limi- 
tation after  the  discovery  of  the  cause  of  action,  applies  to  causes 
of  action  for  fraud,  as  well  as  to  other  causes  of  action;  but  the 
concealment  contemplated  by  the  statute  is  something  more  than 
mere  silence;  it  must  be  of  an  affirmative  character,  and  must  be 
alleged   and   proved   so   as   to  bring  the  case  clearly  within  the 

1  Siatr:  v.  Giles,  52  Ind.  356.  If  at  the  time  of  the  discovery  of  a  fraud,  the 
party  injured  has  his  right  of  action  and  the  statute  begins  to  run  against  it, 
irrespective  of  his  intelligence,  or  of  his  freedom  from  undue  influence,  or  his 
ability  to  resist  it.      Piper  v.  Hoard,  107  N.  Y.  67. 


§  276. J  EFFECT   OF   FRAUD.  657 

meaning  of  the  statute.1-  Something  more  than  mere  silence  is 
necessary,  unless  the  relationship  of  the  parties  is  such  that  the 
party  is  bound  to  speak;2  it  is  necessary  that  some  effort  to  con- 
ceal  the  fraud  should  have  been  made,  either  by  preventing  an 
investigation,  or  by  misleading  the  party  making  inquiry,  or  that 
misrepresentations  were  made  by  the  party  which  were  calculated 
to  mislead  him.  In  other  words,  some  affirmative  acts  to  conceal 
the  fraud  must  be  shown,3  and,  according  to  the  case  last  cited, 
the  party  seeking  to  avoid  the  statute  must  have  exercised  proper 
diligence.4  (<?)     Mere  silence  or  passiveness,  there  being  no  fidu- 

1  Wynne  v.  Cornelison,  52  Ind.  312;  Township  of  Boomer  v.  French,  40  Iowa, 
601;  Stanley  v.  Stanton,  36  Ind.  445.  A  request  by  one  of  two  indorsers  of  a 
note  that  suit  be  delayed  against  him,  or  that  the  other  indorser  be  sued  first,  is 
no  case  for  the  interference  of  a  court  of  equity.  Bank  of  Tenn.  v.  Hill,  10 
Humph.  (Tenn.)  176.  So  where,  in  an  account  settled  between  the  parties,  the 
plaintiff  has  erroneously  credited  the  defendants  with  an  amount  which,  for 
thai  reason,  he  would  be  entitled  to  recover.  Brown  v.  Edes,  37  Me.  492.  Nor 
is  a  denial  on  the  part  of  the  defendant  that  he  was  part  owner  in  a  vessel, 
made  when  a  portion  of  an  account  for  repairs  was  presented  to  him,  such  a 
fraudulent  concealment  as  to  prevent  him  from  availing  himself  of  the  plea  of 
the  stalute.  Rense  v.  Southard,  39  Me.  404.  But  where  the  delay  of  the  plain- 
tiff to  seek  relief  was  occasioned,  in  part  at  least,  by  the  promise  of  ihe  defend- 
ant to  rectify  certain  errors,  the  existence  of  such  errors  came  to  the  knowledge 
of  the  plaintiff  gradually,  and  the  circumstances  were  such  that  the  defendant 
could  suffer  nothing  by  the  delay,  it  was  held  that  the  plaintiff  was  not  pre- 
cluded from  relief  on  the  ground  that  he  had  not  sought  it  within  reasonable 
time.  Callender  v.  Colegrove,  17  Conn.  1.  And  where  it  is  agreed  between 
the  assignor  and  assignee  of  a  promissory  note,  at  the  time  of  the  assignment, 
that  the  assignee  need  not  demand  payment  of  the  maker  before  a  certain  time, 
it  is  not  laches  in  the  assignee  not  to  commence  suit  on  the  note  before  that 
time.  Nance  v.  Dunlavy,  7  Blackf.  (Ind.)  172.  When  the  limitation  is  by  agree- 
ment, as  in  an  insurance  policy,  it  is  generally  held  that  conduct  on  the  part  of 
the  insurers  which  leads  the  insured  to  delay,  is  a  waiver  of  the  limitation. 
Black  v.  Winnisheik  Ins.  Co.,  31  Wis.  74;  Fullam  v.  N.  Y.  Union  Ins.  Co.,  7 
Gray  (Mass.)  61;  McKown  v.  Whitman,  31  Me.  448;  Buckner  v.  Calcote,  28 
Miss.  432. 

2  Miller  :\  Powers,  ng  Ind.  79;  Jackson  v.  Buchanan,  59  id,  390;  Wynne  v. 
Cornelison,  52  id.  312. 

3  Stone  -j.  Brown,  116  Ind.  78. 

4  See  Rhoton  v.  Mendenhall,  17  Or.  199. 

(a)  See    St.    Paul,    etc.,    Ry.    Co.    v.  fraud  is  not  proved,   the  statute  runs 

Sage,  49  Fed.   Rep.  315;  Clark  v.  Van  from  the  time  when  the  wrongful  act 

Loon,  108  Iowa,  250;  Lady  Washington  was  committed.     Trotter  v.    Maclean, 

Cons.  Co.  v.  Wood,  113  Cal.  482;   Hart  13  Ch.   D.  574;   In  re  Crosley,   35  Ch. 

•v.   Church,    126  Cal.   471;    Thomas    v.  D.  266;   Moore  v.  Knight,  [1891]  1  Ch. 

Rauer  (Kansas).  64  Pac.  80;  Stearns  v.  547;  Wilkinson  v.  Verity,  L.  R.  6  C.  P. 

IHochbrunn    (Wash.),    id.    165.      When  206;   Miller  v.  Dell,  [1891]  1  Q.  B.  468; 
[stats,  of  lim. — 42.] 


658  STATUTES   OF   LIMITATION.  [CHAP.   XXII. 

ciary  relation  or  act  of  the  party  calculated  to  deceive  or  lull 
inquiry,  is  not  a  fraudulent  concealment  within  the  meaning  of 
the  statute.1     The  rule  that  the  "concealment  "  which  prevents 

1  Tillison  v.  Ewing,  91  Ala.  467,  holding  that  if  due  inquiry  for  a  certificate  of 
entry  filed  in  the  proper  governmenial  department  to  obtain  a  patent  would 
have  led  to  information  of  its  issuance,  which  is  the  only  fact  claimed  to  have 
been  discovered,  the  concealment  or  destruclion  of  the  patent  will  not  constitute 
such  fraud  which,  under  the  statute,  prevents  the  accrual  of  a  cause  of  action, 
until  its  discovery.  In  Wisconsin  actual  notice  of  the  facts  is  held  necessary, 
and  constructive  notice  will  not  put  the  statute  in  motion,  under  a  statute  pro- 
viding that  a  cause  of  action  for  relief  on  the  ground  of  fraud  does  not  accrue 
until  the  discovery  of  the  facts  constituting  the  fraud.  Fox  v.  Zimmerman,  77 
Wis.  414.  In  New  York  an  action  to  rescind  a  purchase  of  stock  in  a  corpora- 
tion, induced  by  fraud,  does  not  accrue  until  the  discovery  of  the  fraud  by  the 
plaintiff  or  the  person  under  whom  he  claims.  Bosley  v.  National  Mach.  Co., 
123  N.  Y.  550.  The  statute  does  not  run  as  to  a  claim  against  a  firm  of  solicitors 
for  money  sent  them  to  invest,  but  which  is  embezzled  by  their  clerk,  until  dis- 
covery of  that  fact,  where  they  represent  that  it  has  been  invested  and  continue 
to  pay  interest  on  it.  This  rule  is  unaffected  by  the  English  Trustee  Act,  1S88. 
Moore  v.  Knight,  [1891]  I  Ch.  547.  In  Louisiana  it  is  held  that  ptescription 
against  an  action  to  annul  a  judgment  for  fraud  only  runs  from  the  date  of 
discovery  of  the  fraud.  Lazarus  v.  McGuirk  42  La.  An.  194.  The  statute 
does  not  begin  to  run  against  the  claim  of  a  shipper  to  recover  back  excessive 
payments  of  freight  charges  so  long  as  he  has  no  knowledge  of  his  rights,  owing 
to  the  fraudulent  concealment  of  the  cause  of  action  by  the  carrier.  Cook  v. 
Chicago,  R.  I.  &  P.  R.  Co.,  81  Iowa.  The  statute  does  not  apply  to  an  action 
to  cancel  a  sheriff's  deed  of  land  sold  under  a  judgment  which  had  been  pur- 
chased and  held  by  one  who,  acting  under  a  trust,  had  collected  funds  for  its 
satisfaction,  to  such  purchaser,  and  to  remove  the  incumbrance  of  the  judg- 

Carter  v.  Eighth  Ward  Bank,  67  N.  Y.  the  trustee's   breach  of   trust  in  so  re- 

S.   300.     It   is    often    material    to    dis-  ceiving  the  money.     Soar  v.  Ashwell, 

tinguish  between  actual  and  construe-  [iSg3]  2  Q.  B.  390.     See   In  re   Lands 

tive    fraud,    especially    in    relation    to  Allotment  Co.,  [1894]  1  Ch.  616;   Hey- 

trusts,  since,  for  instance,  the  statute  nes  v.  Dixon,  [1900]  2  Ch.  561;  Munici- 

of  limitations  applies    to  constructive  pal   Freehold  Land  Co.  v.   Pollington, 

trusts,  but  not  to  express  trusts  while  63  L.  T.  238;  In  re  Bowden,  45  Ch.  D. 

continuing.     See  Patrick  v.  Sampson,  444.    But  a  mortgagee,  on  receiving  the 

24  Q.    B.  D.    128;  Speidel    v.    Henrici,  cash  proceeds  of  the  sale  of  the  mort- 

120  U.  S    377;  Alsop  v.  Riker,  155  id.  gaged  property  is  not  the  trustee  of  an 

448,  460;  Whitney  v.   Fox,  166  id.  637;  express    trust    so   as    to    suspend    the 

Mc.Monagle  v.  McGlinn,  85   Fed.  Rep.  statute.     Mills  v.   Mills,  115    N.  Y.  80. 

88;  Cooper  v.   Hill,  94  id.  582;   Mount  While  equity  will  regard  with  suspicion 

-'.  Mount,  71  M.  Y.  S.  199;  Seitz  v.  Seitz,  an  attempt  to  establish  a  constructive 

6q    \'.   Y.   S.    170;  Currier   v.   Studley,  resulting  trust  after  such  lapse  of  time 

159  Mass.  17;   Fuller  v.  Cushman,  170  as  thirty  years,  yet  when  the  evidence, 

id.    266;    St.    Paul's   Church    v.    Atty.  though  oral,  is  clear,  it   may  establish 

Gen.,    1(14    Mass.   188,  199,  supra,  §  58,  such  a  trust,  though  denied  by  the  de- 

and    n.      Within    this    rule    a    solicitor  fendant's  answer.     Mclntire  v.  Pryor, 

whom  trustees,  employing  him  for  the  173  U.  S.   3S;  Condit   v.    Maxwell,  ij.2 

trust,  allow    to  collect   and    retain  the  Mo.  266;  Cooksey  v.  Btyan,  2  App.  D. 

trust     funds,     is    an    express    trustee,  C.  557;  Robb  v.  Day,  90  Fed.  Rep.  337; 

ttviuk'h    he   is   guilty  of   concurring  in  Lemoine  v.  Dunklin  County,  51  id.  487- 


§  276.]  EFFECT   OF   FRAUD.  659 

the  running  of  the  statute  must  be  of  a  positive  and  affirmative 
character  was  applied  in  Indiana,  where  one  sued  for  criminal 
conversation  had  persuaded  the  plaintiff's  wife  to  deny  the  same 
for  two  years;  and  the  court  held  that  such  denial  or  procure- 
ment thereof  was  no  "concealment."1  Living  with  a  woman 
without  marriage  to  her,  and  publicly  acknowledging  her  as  the 
wife  of  defendant,  does  not  constitute  a  case  of  concealment  of 
the  crime  of  fornication,  such  as  will  take  the  offense  out  of  the 
statute  of  limitations.2  In  Iowa,  the  provision  of  the  code  as  to 
fraud  is  held  to  apply  only  in  cases  of  equitable  cognization ;  and 
in  a  case  where  B.  conveyed  to  his  son,  who  died  shortly  after- 
wards, leaving  an  illegitimate  son  whom  he  had  recognized,  and 
after  the  death  of  his  son,  B.  again  conveyed  the  property  to 
another,  in  fraud  of  the  rights  of  the  grandson,  who  had  no 
knowledge  of  the  existence  of  the  estate  of  his  father  until  twenty 
years  afterwards,  whereupon" he  immediately  commenced  his 
action,  it  was  held  that  it  was  barred  by  the  statute.3  In  Mary- 
land, it  is  held  that  where  one  practices  fraud,  to  the  injury  of 
another,  the  subsequent  concealment  of  it  from  the  injured  party 
is  in  itself  a  fraud ;  and  if  he  is  thereby  kept  in  ignorance  of  his 

ment  from  the  property.  Wilson  v.  Brookshire,  126  Ind.  497.  In  Kentucky  it 
is  held  that  the  statute  runs  against  an  action  by  a  creditor  to  subject  his 
debtor's  lands  to  the  payment  of  his  debt,  although  the  creditor  lived  in  a  dis- 
tant county  and  did  not  know  of  a  conveyance  by  his  debtor  and  a  record  of  the 
deed  in  the  county  where  the  debtor  lived.  Cockrill  v.  Cockrill  (Ky.)  13  Ky.  L. 
Rep.  10.  The  statute  only  begins  to  run  against  an  action  to  charge  a  trustee 
for  the  trust  property  which  has  been  fraudulently  purchased  at  a  judicial  sale 
for  his  benefit,  from  the  discovery,  by  the  cestui  que  trust,  of  the  facts  consti- 
tuting fraud.  Lewis  v.  Welch,  47  Minn.  193.  A  creditor,  by  admitting  that  he 
was  informed  by  his  debtor  that  he  conducted  his  business  in  his  wife's  name 
to  prevent  his  creditors  from  hampering  him,  acknowledges  that  he  then  had 
notice  of  the  fraud,  so  as  to  set  the  statute  running  from  that  date  against  an 
action  by  him  against  the  wife.  Osborne  v.  Wilkes,  108  N.  C.  651.  In  Ohio 
the  statute  begins  to  run  against  an  action  to  reform  a  written  instrument  on 
the  ground  of  mistake,  upon  ihe  execution  of  the  instrument,  and  not  upon 
the  discovery  of  the  mistake.  Bryant  v.  Swetland,  48  Ohio  St.  194.  But  in 
Nebraska  it  is  held  that  the  statute  begins  to  run  against  a  suit  to  correct  a 
mistake  in  the  drafting  or  recording  of  a  deed,  where  the  correction  involves  no 
change  of  actual  possession  or  disturbance  of  investments,  upon  the  discovery 
of  the  mistake,  or  of  facts  placing  one  on  inquiry.  Ainsfield  v.  More,  1  Neb. 
L.  J.  202. 

•Jackson  v.  Buchanan,  59  Ind.  390. 

"Robinson  v.  State,  57  Ind.  113. 

3  Brown  v.  Brown,  44  Iowa,  349. 


660  STATUTES   OF   LIMITATION.  [CHAP.   XXII. 

cause  of  action,  he  is  kept  in  ignorance  by  "the  fraud  of  the 
adverse  party,"  within  the  meaning  of  the  statute  regarding 
the  right  of  action  "to  have  first  accrued  at  the  time  at  which 
such  fraud  shall,  or  with  usual  and  ordinary  diligence  might,  have 
been  known  or  discovered."  1  In  Illinois,  it  is  held  that  there  is 
no  rule  which  requires  a  trustee  or  cestui  to  execute  and  record 
any  instrument  to  counteract  the  record  of  a  forged  release  of  the 
trust  deed.  Nor  is  the  owner  of  land  limited  to  any  particular 
period  for  commencing  proceedings,  at  law  or  in  equity,  against 
a  forger  of  title  to  his  land,  to  vindicate  his  good  title  against  the 
fraudulent  claim  of  the  forger,  or  one  claiming  under  him.  He 
may  bide  his  time,  and  trust  to  the  strength  of  his  title.2  In 
Minnesota,  it  is  held  that,  under  the  statute,  time  commenced  to 
run  for  a  fraudulent  conversion  from  the  time  of  its  discovery.3 
In  Louisiana,  an  action  by  a  judgment  creditor,  to  annul  a  mort- 
gage on  the  ground  that  it  was  fraudulent,  was  held  to  be  barred 
by  the  statute  in  one  year.4  In  West  Virginia,  the  statute  is  held 
to  run  against  a  suit  to  set  aside  a  conveyance  as  fraudulent 
against  creditors,  founded  on  the  charge  that  its  provisions  are 
such  as  to  render  it  voidable,  as  matter  of  law,  from  the  time 
when  the  deed  was  made;  but  that  it  does  not  run  against  a  suit 
founded  on  the  charge  of  a  fraudulent  intent,  in  fact,  except  from 
the  time  of  discovering  the  fraud.5  In  Iowa,  an  action  by  a  ten- 
ant in  common  to  recover  possession  of  the  common  property 
which  is  fraudulently  held  by  his  co-tenant,  and  to  which  the 
latter  has  acquired  a  tax  deed,  is  not  held  to  be  barred  at  the 
expiration  of  five  years  from  the  recording  of  the  deed.6  In 
Arkansas,  under  the  code  of  practice,  when  courts  can  exercise 
equitable  and  legal  jurisdiction,  if  the  administrator  pleads  the 
statute  of  limitations  in  a  suit  founded  on  a  cause  of  action  accru- 

1  Wear  r.  Skinner,  46  Md.  347.     See  also  Findley  v.  Stewart,  46  Iowa,  655. 

5  Chandler  v.  White,  84  111.  435.  Where  parties  secured  the  legal  title  of  a 
Mexican  grant,  by  presenting  to  the  land  commissioners  a  worthless  document, 
as  a  transfer  of  the  grantee's  interest,  whereby  a  fraud  was  committed  upon 
the  heirs  of  the  grantee,  it  was  held  that  the  patentees  would,  in  equity,  be 
converted  into  trustees,  and  that  limitation  did  not  run,  in  such  case.-agains 
the  right  of  the  heirs,  until  their  discovery  of  the  fraud.  Hardy  v.  Harbin,  4 
Sawyer  (U.  S.)  536.     See  Bescher  v.  Paulus,  58  Ind.  271. 

3  Commissioners  v.  Smith,  22  Minn.  97. 

*  Brewer  v.  Kelly,  24  I. a.  Ann.  246;  Powell  v.  O'Neill,  id.  522. 

6  Hunter  v.  Hunter,   10  W.  Va    123. 

6  Austin  v.  Barrett,  44  Iowa,  488;  Muir  v.  Bozarth,  id.  499. 


§  276.]  EFFECT   OF   FRAUD.  66 1 

ing  in  the  lifetime  of  his  intestate,  fraudulent  conversion  and  con- 
cealment by  the  intestate  may  be  given  in  evidence  in  answer  to 
such  plea.1 

It  is  an  invariable  rule  that  the  fraud  must  have  been  one  which 
was  concealed  from  the  plaintiff  by  the  defendant,  or  which  was 
of  such  a  character  as  necessarily  implied  concealment.  And  the 
acts  which  are  claimed  to  constitute  the  fraud  are  evidenced  by 
public  record  or  by  judicial  proceedings,  and  it  cannot  be  claimed 
that  there  was  such  a  concealment  as  would  prevent  the  opera- 
tion of  the  statute.2 

The  omission  to  disclose  to  the  owner  a  trespass  upon  land,  if 
there  is  no  fiduciary  relation  between  the  parties,  and  the  owner 
has  the  means  of  discovering  the  facts,  and  nothing  has  been 
done  to  prevent  him  from  discovering  them,  is  not  a  fraudulent 
concealment,  within  the  statute.3  But  where  an  agent  or  officer 
of  a  corporation  falsely  represents  that  he  has  paid  a  debt  of  his 
principal  or  of  the  corporation,  and  thereby  induces  the  payment 
of  the  amount  to  him,  the  cause  of  action  does  not  arise  until  the 
fraud  is  discovered.4  The  fraudulent  concealment  must  have 
been  that  of  the  party  sought  to  be  charged,  and  a  mere  allega- 
tion or  proof  that  it  was  the  act  of  his  agent  will  not  be  sufficient, 
unless  he  is  in  some  way  shown  to  have  been  instrumental  in,  or 
cognizant  of,  the  fraud;5  and  in  all  cases  the  plaintiff  takes  the 
burden  of  establishing  the  fraud,  so  as  to  bring  his  case  within 
the  statute.6  (a)     So,  too,  it  must  relate  to  the  cause  of  action, 

1  Meyer  v.  Quarteman,  28  Ark.  45. 

5  Norris  v.  Haggen,  136  U.  S.  386.  See  Way  v.  Cutting,  20  N.  H.  1S7;  Brirker 
v.  Lightner,  40  Penn.  St.  199;  Livermore  v.  Johnson,  27  Miss.  284;  Vigus  v. 
O'Bannon,  118  111.  346;  Atlantic  National  Bank  v.  Harris,  118  Mass.  147;  Wear 
v.  Skinner,  46  Md.  257;   Wilson  v.  Ivy,  32  Miss.  233. 

3  Nudd  v.  Hamblin,  8  Allen  (Mass  )  130. 

4  Atlantic  Bank  v.  Harris,  118  Mass.  147.  But  ihe  procuring  of  the  settle- 
ment and  discharge  of  an  existing  cause  of  action  by  fraudulent  means  is  not 
such  fraudulent  concealment  within  the  statute.  Penobscot  R.  R.  Co.  v.  Mayo, 
65  Me.  566. 

6  Stevenson  v.  Robinson,  39  Mich.  160. 

*  Evans  v.  Montgomery,  50  Iowa,  325.  Proof  of  a  mere  non-user  of  corporate 
powers  is  not  a  concealment  of  the  corporation  such  as  to  suspend  the  running 

(a)  From  fraudulent  concealment  of  even  when  such  concealment  is  not  an 

a  cause  of  action  a   new  promise  will  answer   to    the    statute    in    an    action 

not  be  inferred,  nor  does  such  conceal-  at    law,     relief     therefrom     may    still 

ment  estop  the  defendant  from  setting  be  gained  in  equity.     Freeholders    of 

up  at  law  the  bar  of  the  statute;  and  Somerset  v.   Veghte,   44  N.  J.  L.   509; 


662  STATUTES   OF   LIMITATION.  [CHAP.   XXII. 

and  does  not  apply  to  the  concealment  of  property,  so  that  it 
cannot  be  reached  upon  execution.1  Except  where  made  so  by 
statute,  mere  ignorance  of  one's  rights  does  not  prevent  the 
operation  of  the  statute.2 

of  the  statute.  Fort  Scott  v.  Schulenberg,  22  Kan.  648.  So  where  a  guardian 
refused  to  settle  with  his  ward,  and  put  him  off  for  several  years,  saying  that 
he  had  the  matter  fixed,  it  was  held  not  such  fraud  as  would  take  the  case  out 
of  the  statute.  Jones  v.  Strickland,  61  Ga.  356.  In  an  action  by  a  judgment 
plaintiff  induced  by  one  in  collusion  with  the  debtor  to  sell  the  judgment  for 
half  its  amount,  it  was  held  that  the  six  years'  limitation  of  the  Indiana  statute 
to  "  an  action  for  relief  against  frauds  "  commenced  to  run  when  the  fraud 
was  peipetrated.  Wood  v.  Carpenter,  101  U.  S.  135.  See  also  Mercantile  Bank 
v.  Carpenter,  id.  567;  Sweet  v.  Hentig,  24  Kan.  497. 

1  Humphreys  v.  Mattoon,  43  Iowa,  556.  In  Rice  v.  Burt,  4  Cush.  (Mass.) 
208,  the  concealment  of  property  by  an  insolvent  from  his  assignee,  and  his 
concealment  from  a  creditor  of  fraudulent  acts,  which  if  known  would  have 
enabled  the  creditor  to  avoid  the  debtor's  discharge,  were  held  not  a  fraudulent 
concealment  of  the  plaintiff's  cause  of  action.  In  Fleming  v.  Culbert,  46  Penn. 
St.  498,  the  investment  of  money  in  bonds,  etc.,  by  an  attorney  in  fact,  instead 
of  remitting  it  to  his  client,  was  held  not  a  fraudulent  concealment  suspending 
the  statute.      See  also  Munson  v.  Hallowell,  26  Tex.  475. 

2  Foster  v.  Rison,  17  Gratt.  (Va.)  321;  Campbell  v.  Long,  20  Iowa,  382;  Bassand 
v.  White,  9  Rich.  (S.  C.)  Eq.  483;  Bank  v.  Waterman,  26  Conn.  324;  Abell  v. 
Harris,  11  G.  &  J.  (Md.)  367;  Martin  v.  Bank,  31  Ala.  115;  Davis  v.  Cotten,  2 
Jones  (N.  C.)  Eq.  430. 

Sanborn  v.  Gale,  162  Mass.  412;  Coffing  an  action  at  law.     Holloway  v.  Appel- 

v.  Dodge,  169  Mass.  459.     And  there  is  get,  55   N.  J.  Eq.  5S3.     See  Parsons  v. 

no  reason   why  a  court  of  equity  may  Hartman  (25  Oregon,  547),  30  L.  R.  A. 

not,  by  injunction,  disarm  a  defendant  98,  142,  n. 
from  using  the  statute  fraudulently  in 


J  277.]  MUTUAL  ACCOUNTS,  ETC.  663 


CHAPTER  XXIII. 

Mutual  Accounts,  &c. 

Sec.  277.  Statutory  Provisions  as  to.         Sec.  279.   Merchants'  Accounts. 
278.    What  are  Mutual  Accounts.  2S0.   Stated  Accounts. 

SEC.  277.  Statutory  Provisions  as  to.  —  Formerly  the  doctrine 
relative  to  mutual  accounts  was  predicated  upon  the  rule  advanced 
in  Catling  v.  Skoulding,1  that  the  statute  only  attached  from  the 
date  of  the  last  item  on  either  side  of  the  account.  This  rule  was 
generally  adopted  in  this  country.2     In  most  of  the  States  this 

1  Catling  v.  Skoulding,  6  T.  R.  189.     See  also  Cranch  v.   Kirkman,   Peake's 
Cas.  164. 

'  Hutchinson  v.  Pratt,  2  Vt.  149;  Wood  v.  Barney,  2  id.  369;  Davis  v.  Smith, 
4  Me.  337;  Penn  v.  Weston,  20  Mo.  13;  Cogswell  v.  Dolliver,  2  Mass.  217; 
Belles  v.  Belles,  12  N.  J.  L.  339;  Pridgen  v.  Hill,  12  Tex.  374;  Swearingen  v. 
Harris,  1  W.  &  S.  (Penn.)  356;  Thomas  v.  Hooper,  id.  467;  Chambers  v.  Marks, 
25  Penn.  St.  296;  Sickles  v.  Mather,  20  Wend.  (N.  Y.)  72;  Coster  v.  Murray,  5 
Johns.  (N.  Y.)  Ch.  522;  Ramchander  v.  Hammond,  2  id.  200;  Union  Bank  v. 
Knapp,  3  Pick.  (Mass.)  96;  Tucker  v.  Ives,  6  Cow.  (N.  Y.)  193;  Chamberlin 
v.  Cuyler,  9  Wend.  (N.  Y.)  126;  Edmonstone  v.  Thomson,  15  id.  559;  Bass  v. 
Bass,  6  Pick.  (Mass.)  364;  Ashley  v.  Hill,  6  Conn.  246;  M'CIellan  v.  Croften,  6 
Me.  308;  App  v.  Dreisbach,  2  Rawle  (Penn.)  287;  Brady  v.  Calhoun,  1  Penn. 
140;  Moore  v.  Munro,  4  Rand.  (Va.)  4SS;  Newsome  v.  Persons,  2  Hayw.  (N.  C.) 
242;  Davis  v.  Tiernan,  2  How.  (Miss.)  786;  Fitch  v.  Hilleary,  1  Hill  (S.  C.)  292; 
Taylor  v.  McDonald,  2  Mill's  Const.  (S.  C.)  178;  Kimball  v.  Brown,  7  Wend. 
(N.  Y.)  322;  Swearingen  v.  Harris,  r  W.  &  S.  (Penn.)  356;  Thompson  v.  Hop- 
per, 1  W.  &  S.  (Penn.)  467;  Hay  v.  Kramer,  2  S.  &  W.  (Penn.)  137;  Ingram  v. 
Sherard,  17  S.  &  R.  (Penn.)  347;  Beltzhoover  v.  Yewell,  11  G.  &  J.  (Md.)  212; 
Turnbull  v.  Strohecker,  4  McCord  (S.  C.}  210;  Buntin  v.  Lagow,  1  Blackf.  (Ind.) 
573;  Hibler  v.  Johnston,  18  N.  J.  L.  266;  Knipe  v.  Knipe,  3  Blackf.  (Ind.)  300; 
M'Naughton  v.  Norris,  1  Hayw.  (N.  C.)  216;  Sumter  v.  Morse,  2  Hill  (S.  C.)  92; 
Mandeville  v.  Wilson,  5  Cranch  (U.  S.)  15;  Toland  v.  Spring,  12  Peters  (U.  S.) 
300;  Smith  v.  Ruecastle,  7  N.  J.  L.  357.  But  in  New  Hampshire  this  doctrine 
is  denied.  Blair  v.  Drew.  6  N.  H.  235;  Hannan  v.  Englemann,  49  Wis.  278; 
Turnbull  v.  Storhecker,  4  McCord  (S.  C.)  210;  Van  Swearingen  v.  Harris,  1  W. 
&  S.  (Penn.)  356;  Mauney  v.  Coit,  86  N.  C.  463;  Waffle  v.  Short,  25  Kan.  503; 
Keller  v.  Jackson,  58  Iowa,  629;  Chambers  v.  Chambers,  78  Ind.  400;  Gunn  v. 
Gunn,  74  Ga.  555;  Flournoy  v.  Wooten,  71  id.  16S;  Ford  v.  Clark,  72  id.  760; 
Kutz  v.  Fleisher.  67  Cal.  93;  Ware  v.  Manning,  86  Ala.  238.  See  Gage  v.  Dud- 
ley, 64  N.  H.  271,  (where  the  accounts  were  hardly  mutual),  and  Livermore  v. 


664  STATUTES   OF   LIMITATION.  [CHAP.   XXIII 

rule  has  now  been  adopted  by  positive  enactment.  Thus,  in 
Maine  the  statute  '  provides  that  "  in  all  actions  of  debt  or  assump- 
sit to  recover  the  balance  due,  in  cases  where  there  have  been 
mutual  dealings  between  the  parties,  the  items  of  which  are 
inserted,  whether  kept  or  proved  by  one  party  or  both,  the  cause 
of  action  shall  be  deemed  to  accrue  at  the  time  of  the  last  item 
proved  in  such  account;"  and  a  similar  provision  exists  in  the 
statute  of  Massachusetts,  New  York,  Alabama,  Arkansas, 
Colorado,  Delaware,  Florida,  Indiana,  Iowa,  Mississippi,  Mis- 
souri, Minnesota,  North  Carolina,  South  Carolina,  Oregon,  Cali- 
fornia, Michigan,  Wisconsin,  Nevada,  Tennessee,  Arizona, 
Dakota,  Idaho,  Montana,  New  Mexico,  and  Utah.  In  Rhode 
Island,  New  Jersey,  Kentucky,  Maryland,  Virginia,  West 
Virginia,  and  Pennsylvania,  the  provision  is  substantially  the 
same  as  in  the  statute  of  James.  In  Virginia  and  West  Virginia 
an  action  must  be  brought  upon  any  store  account  for  goods 
charged  therein  within  two  years.  In  Texas,  in  all  accounts, 
except  between  merchant  and  merchant,  their  factors  and  agents, 
the  respective  time  or  date  of  the  delivery  of  each  article  charged 
must  be  specifically  stated,  and  the  statute  runs  against  each  item 
from  the  date  of  delivery,  unless  otherwise  agreed.  In  Louisiana, 
the  accounts  of  retailers  of  provisions  and  liquors,  and  the 
accounts  of  all  merchants,  whether  selling  by  retail  or  wholesale, 
are  barred  within  three  years  from  the  time  when  the  articles 
charged  shall  have  been  furnished,  but  upon  open  accounts  the 
statute  does  not  run  until  five  years. 

Rand,  26  N.  H.  85,  where  this  doctrine  is  denied,  following  the  rule  adopted  in 
Blair  v.  Drew,  6  N.  H.  235.  See  also  Perry  v.  Chesley,  77  Me.  393,  and  Lancey 
v.  R.  R.  Co.,  72  id.  34,  where  it  is  held  that  the  last  item  of  an  account  does  not 
save  the  statute  unless  there  are  other  items  within  six  years.  The  theory  upon 
which  the  doctrine  as  to  mutual  accounts  rests,  is,  that  there  is  a  mutual  under- 
standing between  the  parties,  either  express  or  implied,  that  they  will  continue 
to  credit  each  other  until  one  signifies  a  contrary  intention,  when  the  balance, 
being  ascertained,  becomes  due  and  payable.  Gunn  v.  Gunn,  74  Ga.  555; 
Dunn  v.  Fleming,  73  Wis.  545;  Kutz  v.  Fleisher,  67  Cal.  93;  Roots  v.  Mason, 
jtc,  Co.  27  W.  Va.  483;  Webster  v.  Byrnes,  32  Md.  86;  Chapman  v.  Goodrich, 
55  Vt.  354;  Hodge  v.  Manley,  25  id.  210;  Dyer  v.  Walker,  51  Me.  104;  Mattern 
v.  McDivett,  113  Penn.  St.  402;  Partridge  v.  Schwartz,  136  Mass.  30;  Adam  v. 
Carroll,  85  Penn.  St.  209;  Abbay  v.  Hill,  64  Miss.  340;  Stewart's  App.,  105 
Penn.  St.  307;  Hollywood  v.  Reed,  55  Mich.  308;  Adams  v.  Patterson,  35  Cal. 
122;  Lark  v.  Cheatha,  80  Ga.  I;  Ford  v.  Clark,  72  id.  760;  Dickinson  v.  Williams, 
11  Cush.  (Mass.)  258;  Wooley  v.  Osborne,  39  N.  J.  Eq.  54. 
'■  A  ppendix,  Maine. 


§  278.]  MUTUAL   ACCOUNTS,   ETC.  665. 

Sec.  278.  What  are  Mutual  Accounts.  —  Mutual  accounts  are 
make  up  of  matters  of  set-off,  or,  in  other  words,  are  accounts 
between  parties  who  have  a  mutual  and  alternate  course  of  deal- 
ings,1 under  an  implied  agreement  that  one  account  may  and 
shall  be  offset  against  the  other,  pro  tanto.  In  the  language  of 
Earl,  J.,2  in  an  able  opinion,  "  The  very  theory  upon  which  this 
statute  is  based  is  that  the  credits  are  mutual,  and  that  the 
account  is  permitted  to  run  with  the  view  of  ultimate  adjustment 
by  a  settlement  and  payment  of  the  balance;  and  this  theory  is 
recognized  in  the  statute,  as  it  mentions  an  action  brought  to 
recover  a  balance  due  upon  an  account."  The  action,  however, 
need  not  be  for  the  balance  due  upon  the  account.  It  is  suffi- 
cient if  such  is  its  purpose  and  legal  effect.3  If  the  account  is  all 
upon  one  side,  and  the  statute  has  run  upon  some  of  the  items, 
the  account  is  not  mutual,  and  only  those  upon  which  the  statute 
has  not  run  can  be  recovered;4  and  this  is  so,  although  entries  of 
payments  are  made  upon  the  account,  the  rule  being  that  mere 
technical  payments  of  money  on  account,  made  by  one  to  another, 
for  which  credit  is  given,  do  not  make  the  accounts  mutual  so  as 
to  prevent  the  statutory  bar  from  attaching.5  In  such  a  case,  the 
accounts  are  said  to  lack  the  essential  attributes  to  the  creation 
of  mutual  accounts,  the  express  or  implied  agreement  to  set  off 
the  one  against  the  other,  and,  instead,  that  the  payment 
instantly  goes  in   reduction   of  the   debt,  pro  tanto.*(a)     Such 

1  Robarts  v.  Robarts,  1  M.  &  P.  487;  Ingram  v.  Sherard,  17  S.  &  R.  (Penn.)  347. 

2  Green  v.  Disbrow,  79  N.  Y.  1,  35  Am.  Rep.  496. 

3Penniman  v.  Rotch,  3  Met.  (Mass.)  216.  "  In  ordinary  cases,"  said  Red- 
field,  J.,  "  of  mutual  dealings  no  obligation  is  created  in  regard  to  each  particu- 
lar item,  but  only  for  the  balance;  and  it  is  the  constantly  varying  balance 
which  is  the  debt  "  Abbott  v.  Keith,  11  Vt.  525.  See  also  Hodge  v.  Manley, 
25  Vt.  210. 

4  Robarts  v.  Robarts,  supra;  Ashby  v.  James,  11  M.  &  W.  542;  Smith  v.  Forty. 
4  C.  &  P.  126. 

6  Webster  v.  Byrnes,  32  Md.  86;  Adams  v.  Carroll,  85  Penn.  St.  200;  Prenatt 
v.  Runyan,  12  Ind.  174;  Dver  v.  Walker,  51  Me.  104;  Weatherwax  v.  Cosumnes 
Valley  Mill  Co.,  17  Cal.  344;  Adams  v.  Patterson,  35  Cal.  122;  Peck  v.  N.  Y., 
etc.,  S.  &  S.  Co.,  5  Bosw.  (N.  Y.)  226;  Frayler  v.  Sonora,  etc.,  Co.,  17  Cal.  594; 
Lark  v.  Cheatham,  80  Ga.  1. 

*  In  Gold  v.  Whitcomb,  14  Pick.  (Mass.)  188,  where  it  appeared  that  the  defend- 
ant kept  no  account  with  the  plaintiff.      In   this  case  a  shopkeeper's  account 

(a)  In  order  to  prove  a  mutual  and  parties,  consisting  of  sales  made,  or 
open  account  current,  it  is  sufficient  to  services  performed,  by  each  part)',  to 
prove    mutual   dealings    between    the     or  for  the  other,  creating  mutual  debts, 


666 


STATUTES    OF    LIMITATION. 


[CHAP.   XXIII. 


accounts,  instead  of  being  mutual,  are  one-sided,1  and  lack  the 
essential  attribute  of  mutuality.2  In  Pennsylvania,3  it  is  held 
that  an  account  is  not  rendered  mutual  by  a  payment,  either  of 
goods  or  money,  and  the  reason  is  stated  to  be  that  a  mutual 
account  is  when  each  has  a  demand  or  right  of  action  against  the 
other;  and  that  this  is  not  so  when  the  sale  is  by  one  to  the 
other,  whether  it  is  to  be  paid  for  in  cash  or  in  kind,  and  that 
the  manner  of  payment  can  make  no  difference.  But  the  doctrine 
of  these  cases  is  questioned  in  New  York,  and  it  is  held  that 
where  there  are  charges  upon  both  sides  of  the  account  for  prop- 
erty other  than  money,  although  the  account  is  kept  by  one  of 
the  parties  only,  and  consists  of  debits  on  one  side,  and  credits 

containing  charges  and  credits  more  than  six  years  before  action  brought,  and 
only  two  small  charges  within  six  years,  was  held  not  an  account  current  or 
mutual  account,  so  that  the  last  two  items  should  draw  ihe  others  out  of  the 
statute. 

1  Ingram  v.  Sherard,  17  S.  &  R.  (Penn.)  347;  Lowber  v.  Smith,  7  Penn.  St.  381. 

3  Hay  v.  Kramer,  2  W.  &  S.  (Penn.)  137;  Coster  v.  Murray,  5  Johns.  (N.  Y.) 
Ch.  522;  Edmonstone  v.  Thomson,  15  Wend.  (N.  Y.)  554;  Belles  v.  Belles,  12 
N.  J.  L.  33q;  Gulick  v.  Turnpike  Co.,  14  id.  545. 

3  "As,  for  example,"  says  Rogers.  J.,  "  where  A.  and  B.  dealing  together,  A. 
sells  B.  an  article  of  furniture  or  any  other  commodity,  and  afterwards  B.  sells 
A.  property  of  the  same  or  a  different  description,  this  constitutes  a  reciprocal 
demand,  because  A.  and  B.  have  a  demand  or  right  of  action  against  each 
other."     Lowber  v.  Smith,  7  Penn.  St.  381;  Adams  v.  Carroll,  85  id.  209. 


and  which  by  mutual  agreement  or 
understanding  are  to  be  set  off  against 
each  other.  Corinne  Mill  Co.  v.  To- 
ponce,  152  U.  S.  405;  In  re  Huger, 
100  Fed.  Rep.  805;  Safford  v.  Barney, 
121  Mass  300;  Eldridge  v.  Smith,  144 
Mass.  35;  Kingsley  v.  Delano,  169 
Mass.  285;  In  re  Hovey's  Estate 
(Penn.),  4S  Atl.  311;  Dunavant  z. 
Fields  (Ark.).  60  S.  W.  420;  McFarland 
v.  O'Neil.  155  Penn.  St.  260;  Haffner 
v.  Schmuck,  63  N.  Y.  S.  55.  Mere 
credits,  not  proved  to  have  been  actu- 
ally made,  have  no  effect  on  the  run- 
ning of  the  statute.  In  re  Gladke,  60  N. 
Y.  S.  869.  An  item  which  is  merely  a 
payment  made  by  the  defendant  on  ac- 
count of  items  charged  against  him  by 
the  plaintiff  does  not  make  the  account 
a  mutual  an:l  open  one  within  the 
meaning  of  the  statuie,  as  it  is  not  a 
matter  of  separate  and  individual 
charge,  but  i^  merely  a  partial  ex- 
tinguishment of  an  existing  indebted- 
hay  v.    Mayo,    154   Mass.    472. 


There  must  be  evidence  of  an  intention 
on  the  debtor's  part  to  apply  such  pay- 
ments, if  not  more  than  sufficient  to 
cover  recent  items,  to  the  older  ilems 
already  barred  by  limitation.  Miller 
v.  Cinnamon,  168  111  447,  456.  In 
Minnesota  the  question  simply  is 
whether  the  part  payment  was  volun- 
tary and  unconditional;  if  it  was,  it 
operates,  if  the  defendant  has  admitted 
the  correctness  of  the  account  against 
him,  to  renew  from  its  date,  for  the 
statutory  period,  the  right  of  action 
upon  the  balance  remaining.  Clarki  n 
v.  Brown  80  Minn.  361.  When  an  ac- 
count is  closed  by  settlement  or  other- 
wise, it  becomes  an  account  stated; 
this  gives  a  new  and  original  cause  of 
action,  and  the  statute  of  limitations 
begins  to  run  only  from  its  date.  King 
v.  Davis,  168  Mass.  133;  Porter  v.  Chi- 
cago, etc.,  Ry.  Co.,  99  Iowa,  351 ;  Morse 
v.  Minton,  101  Iowa,  603;  and  cases 
cited  infra,  g  280,  n.  (a). 


§  2/8.]  MUTUAL  ACCOUNTS,  ETC.  667 

for  merchandise  upon  the  other,  the  account  is  a  mutual  account, 
within  the  meaning  of  the  statute.1  And  this  view  is  adopted  in 
California;2  and  in  Georgia3  and  Michigan4  it  has  been  carried 
still  further,  and  credits  for  labor  upon  one  side,  and  payments  of 
money  upon  the  other,  have  been  held  sufficient  to  render  the 
accounts  mutual.  In  England,  it  is  also  held  that  the  balance 
of  an  account  may  be  carried  forward  and  become  an  item  in  a 
new  account.5  But  in  Massachusetts6  a  contrary  doctrine  was 
held. 

The  advantage  of  bringing  an  account  under  the  head  of 
mutual  accounts  is,  that  an  item  upon  either  side  within  the 
statutory  period  draws  after  it  all  other  items  beyond  that  period  ; 7 
whereas,  if  the  account  is  not  mutual,  and  the  items  upon  one 

1  Green  v.  Disbrow,  7g  N.  Y.  1.  Cash  payments  made  and  received  to  be 
applied  on  general  account,  and  on  account  of  actual  or  supposed  indebtedness, 
extinguish  pro  tanto  the  indebtedness,  and,  if  made  in  advance,  will  apply  to 
extinguish  the  next  indebtedness,  and  the  statute  of  limitations  has  no  applica- 
tion.    Raux  v.  Brand,  90  N.  Y.  309. 

5  Norton  v.  Larco,  30  Cal.  126,  where  the  delivery  of  articles  to  be  applied  on 
account  was  held  to  be  a  sale,  and  not  a  payment  pro  tanto. 

3  Where  a  running  account  for  a  series  of  years  is  kept  between  an  employer 
and  his  employee,  for  work  on  the  one  hand  and  payments  upon  the  other,  the 
statute  does  not  run  thereon  so  long  as  the  last  item  of  such  account  is  within 
the  statute;  but  if  there  has  at  any  time  been  an  accounting  and  settlement 
between  the  parties,  monthly  or  otherwise,  whereby  the  account  is  sifted  and 
stated,  or  liquidated  either  by  cash  or  note  for  the  balance  due,  or  the  carrying 
forward  ot  such  balance  to  the  next  month's  account,  such  settlement  will 
become  a  new  departure,  and  the  items  within  the  statute  will  draw  without  its 
operation  only  that  part  of  the  account  made  since  such  settlement,  with  such 
balance,  if  any,  brought  forward.     Schall  v.  Eisner,  58  Ga.  190. 

4  Payne  v.  Walker,  26  Mich.  60. 

5  Farrington  v.  Lee,  I  Mod.  270. 

6  Where  the  defendant  was  a  depositor  in  the  plaintiff  bank,  and  his  deposits 
were  erroneously  footed  at  $1,000  too  much,  and  the  balance  so  erroneously 
ascertained  was  struck  and  carried  to  his  credit  on  the  bankbooks,  the  checks 
being  annulled,  and  the  same  error  was  repeated  monthly  for  more  than  six 
years,  during  which  the  dealings  of  the  parties  continued,  when  to  an  action  by 
the  bank  10  recover  back  the  amount  the  defendant  pleaded  the  statute,  it  was 
held  that  as  to  the  $1,000,  the  account  was  not  an  open,  mutual,  and  running 
account,  but  had  become  a  settled  and  stated  account  each  month,  although  the 
balance  due  the  defendant  was  not  then  paid  in  cash,  but  was  carried  forward 
as  the  first  item  in  the  subsequent  month's  account.  Union  Bank  v.  Knapp,  3 
Pick.  (Mass.)  96.     See  also  Belchertown  v.  Bridgman,  118  Mass.  486. 

1  Hallock  v.  Losser,  1  Sandf.  (N.  Y.)  220;  Judd  v.  Sampson,  13  Tex.  19;  Gui- 
chard  v.  Superveile,  11  id.  522;  Turnbuli  v.  Strohecker,  4  McCord  (S.  C.)  214; 
Cotes  v.  Harris,  Buller's  N.  P.  149. 


668  STATUTES   OF   LIMITATION.  [CHAP.   XXIII. 

side  are  mere  cash  payments  upon  the  items  on  the  other,  the 
payment  so  made  will  only  keep  that  portion  of  the  account  on 
loot  which  accrued  within  six  years  from  the  time  such  payment 
was  made.1 

SEC.  279.  Merchants'  Accounts.  —  There  is  an  exception  in 
favor  of  merchants'  accounts,  or  accounts  between  merchants,  etc., 
in  some  of  the  statutes,  as  in  Texas,  Kentucky,  New  Jersey, 
Rhode  Island,  Virginia,  and  West  Virginia;  and  while  an  account, 
to  come  within  the  saving  under  this  head,  must  be  for  merchan- 
dise or  money  growing  out  of  the  trade  of  merchandise  between 
merchants,2  yet  in  other  respects  they  resemble  mutual  accounts, 
and  must  be  reciprocal  demands;3  and  in  some  English  cases  it 
was  intimated4  that  in  such  accounts  mere  time  would  never  be 
a  bar,  while  in  others5  the  difference  between  merchants'  accounts 
and  others  was  said  to  be  that  a  continuation  afterwards  will  pre- 
vent the  statute  from  running  against  the  former,  but  will  be  a 
bar  to  all  articles  before  six  years  in  other  accounts.  In  Pennsyl- 
vania,6 a  single  transaction  is  held  not  to  be  within  the  exception 
of  the  statute,  although  it  happens  to    be   between  merchants; 

1  Tucker  v.  Ives,  6  Cow.  (N.  Y.)  193;  Bennett  v.  Davis,  1  N.  H.  10;  Buntin  v. 
Lagow,  1  Blackf.  (Ind.)  373;  Miller  v.  Cohvell,  5  N.  J.  L.  577;  Kimball  v. 
Brown,  7  Wend.  (N.  Y.)  322;  McCullough  v.  Judd,  20  Ala.  703;  Prewett 
v.  Runyan,  12  Ind.  174;  Adams  v.  Patterson,  35  Cal.  122.  If  personal  property 
is  delivered  to  a  creditor,  to  be  applied  towards  payment  of  the  debt,  the  trans- 
action is  not  a  mutual  account,  consisting  of  "  reciprocal  demands  "  between 
the  parties,  within  the  meaning  of  section  17  of  the  Nevada  statute.  Warren  v. 
Sweeney.  4  Nev.  101.  Items  in  an  account,  charged  within  six  years,  do  not 
take  items  charged  more  than  six  years  before  suit  out  of  the  statute  of  limita- 
tions, unless  there  are  mutual  accounts  between  the  parties.  Bennett  v.  Davis, 
1  N.  II.  19;  Kimball  v.  Brown,  7  Wend.  (N.  Y.)  322;  Miller  v.  Cohvell,  5  N.  J. 
L.  577;  Buntin  v.  Lagow,  1  Blackf.  (Ind.)  373;  Tucker  v.  Ives,  6  Cow.  (N.  Y.) 
193.  Items,  in  mutual  arcounis,  within  six  years  next  before  action  brought, 
do  not  admit  an  unsettled  account  extending  beyond  six  years,  nor  show  a 
promise  to  pay  the  balance,  so  as  to  take  the  case  out  of  the  statute  of  limita- 
tions.    Blair  v.  Drew,  6  N.  H.  235. 

Bass  v.  Bass,  8  Pick.  (Mass.)  187;  Mandeville  v.  Wilson,  5  Cranch  (U.  S.)  15; 
Wilson   v.    Mandeville,    1    Cranch   (U.    S.    C.    C.)    433;   Bond    v.  Jay,  7   Cranch 

- 

'Atvvater  v.  Fowler,  1  Edw.  (N.  Y.)  Ch.  417;  Hussy  v.  Burgwyn,  6  Jones 
(N.  C.)  L.  385;  Chew  v.  Baker,  4  Cranch  (U.  S.  C.  C.)  696. 

4  Catling  v.  Skoulding,   supra. 

6  Martin  v.  Ileathcote,  2  Eden,  169  See  also  Dyott  v.  Letcher,  6  J.  J.  Mar. 
(Ky.)  541. 

1  Marseilles  v.  Kenton,  17  Pcnn.  St.  238. 


§  280.]  MUTUAL   ACCOUNTS,   ETC.  669 

and  accounts  when  stated  cease  to  be  merchants'  accounts;1  and 
accounts,  the  items  of  which  are  all  on  one  side,  are  not  mer- 
chants' accounts,  because  not  mutual.2  The  question  whether 
accounts  do  concern  the  trade  of  merchandise  between  merchant 
and  merchant  is  for  the  jury.8 

SEC.  280.  Stated  Accounts.  —  As  soon  as  an  account  ceases  to 
be  open,  and  the  balance  is  ascertained  and  assented  to,  it  becomes 
a  stated  account,  and  the  balance  is  at  once  subject  to  the  opera- 
tion of  the  statute ; 4  (a)  and  an  account  becomes  a  stated  account 
when  it  is  furnished  to  another,  and  he  retains  it  for  a  long  time 
without  objection,  as  well  as  where  the  parties  mutually  agree 
upon  a  balance.  Except  in  those  States  where  the  statute 
requires  that  a  new  promise  or  acknowledgment  shall  be  in  writ- 
ing, the  statute  begins  to  run  from  the  date  of  the  account  stated,5 
as  the  stating  of  an  account,  accompanied  by  an  express  promise 
to  pay  it,  or  an  acquiescence  in  the  account  as  stated  sufficiently 
long  to  rebut  any  presumption  that  there  are  objections  thereto, 
raises  an  implied  promise  to  pay  the  balance  found,  and  changes 
the  character  of  the  account  from  a  mutual  to  a  stated  account, 
so    that    assumpsit   will    lie    for    its    recovery,   even   though  the 

1  Thompson  v.  Fisher,  13  Perm.  St.  310;   Bevan  v.  Cullen,  7  id.  281. 

2  Fox  v.  Fisk,  7  How.  (Miss.)  328;  Murray  v.  Coster,  supra. 

3  Bass  v.  Bass,  supra. 

4  Waller  v.  Lacey,  1  M.  &  G.  54;  Williams  v.  Griffith,  2  Cr.  M.  &  R.  45;  Mills 
z>.  Fovvkes,  7  Scott,  444;  Clark  v.  Alexander.  8  id.  147;  Coltam  v.  Partridge,  4 
M.  &  G.  271. 

5  Little  v.  Blunt,  9  Pick.  (Mass.)  4S8.  When  parties  make  out  an  itemized 
account  of  their  muiual  dealings,  and  the  balance  is  then  ascertained  and  paid, 
the  items  are  no  longer  unsettled,  although  one  item  was  omitted  by  mistake. 
And  if  in  such  case,  six  years  thereafter,  on  discovering  the  omission,  an  action 
on  the  entire  account  is  brought  to  recover  the  real  balance,  the  statuie  will 
bar  the  recovery.  Lancey  v.  Maine  Central  R.  Co.,  72  Me.  84.  The  leading 
English  case  upon  mutual  accounts  between  parties  other  than  merchants  is 
Catling  v.   Skoulding,    6  T.    R.    1S9,  in  which  it   was  held  that  if  there  be  any 

(a)  "An  account  stated   is  merely  an  there    must    be    an    agreement  bv  the 

agreement  between   persons  who  have  parties.     Davis  v.  Seattle  Nal.   Bank, 

had    previous    transactions  fixing    the  19  Wash.  65,  72;   Hughes  v.   Smithers, 

amount  due  as  the  result  of  an  account-  49    N.  Y.    S.   115,  and    57  N.   E.   1112; 

ing."    Jorgensen  v.  Kingslev  (60  Neb.),  Bradley   Fertilizer   Co.   v.  South   Pub. 

82  N.  W.  104;    Spellman  v.  Muehlfeld,  Co.,  17    N.  Y.  S.  587;   Howell    v.  John- 

166  N.  Y.  245;    Porter  v.  Chicago,  etc.,  son  (Oregon),  64  Pac.  659.     It  need  not 

Ry.  Co.,  99  Iowa,  351;  Peirce  v.  Peirce,  be   in    writing.     Watkins    v.   Ford,    69 

199  Penn.  St.  4.     It  "  cannot  be  made  Mich.  357;  Lallande  v.  Brown,  121  Ala. 

trie  instrument  per  se  to  create  a  lia-  513. 
bilitv  where  none  before  existed,"  and 


6/0  STATUTES   OF   LIMITATION.  [CHAP.    XXIII. 

remedy  originally  might  have  been  by  debt  or  covenant.1  (a)  But  in 
those  States  where  the  statute  requires  that  an  acknowledgment 
or  new  promise  shall  be  in  writing,  the  stating  of  an  account  does 
not,  either  with  an  express  parol  promise  or  an  implied  promise 
to  pay  it,  fix  a  new  period  from  which  the  statute  starts  to  run ;. 
and  if  the  statute  had  begun  to  run  upon  the  original  account, 
or  any  of  the  items  thereof,  before  the  account  was  stated,  it 
continues  to  do  so,  notwithstanding  the  stating  of  the  account, 
unless  there  is  a  promise  in  writing  to  pay  the  account  as  stated.2 
It  is  true  the  rule  is  generally  that,  when  a  party  indebted  upon 
an  account  receives  and  retains  it  beyond  such  time  as  is  reason- 
able under  the  circumstances,  and  according  to  the  usage  of  the 
business,  for  examining  and  returning  it,  without  communicating 
any  objections,  he  is  considered  to  acquiesce  in  its  correctness, 
and  he  becomes  bound  by  it  as  an  account  stated;3  and  a  court 

mutual  account  between  the  parties  for  any  item  of  which  credit  has  been  given 
within  six  years,  that  is  evidence  of  acknowledgment  of  there  being  such  an 
open  account  current  between  them  and  of  a  promise  to  pay  the  balance,  so  as 
to  take  the  case  out  of  the  statute.  That  decision  was  cited  and  followed  in 
Cogswell  v.  Dolliver,  2  Mass.  217.  And  the  court  in  this  State  adopted  the 
same  doctrine,  citing  the  above  cases,  and  calling  it  a  reasonable  judicial 
construction  of  the  statute.  Davis  v.  Smith,  4  Me.  337.  See  also  McLellan  v. 
Crofton,  6  id.  307;  Therbold  v.  Slinson,  3S  id.  149;  Dyer  v.  Walker,  51  id.  104. 
The  settlement  charges  the  character  of  the  account;  the  items  become  dis- 
charged by  the  payment  of  the  agreed  balance  which  resulted  from  setting  off 
against  each  other  the  counter  items.  The  discharge  of  the  items  is  a  con- 
sideration to  sustain  a  promise  to  pay  the  balance.  May  v.  King,  12  Mod.  538; 
s.  c,  1  Ld.  Raym.  680;  Callander  v.  Howard,  10  C.  B.  290.  If  one  of  the  items 
of  the  account  was  overlooked,  the  settled  account,  after  six  years,  can  afford 
no  aid  in  taking  it  out  of  the  statute  of  limitations.  Union  Bank  v.  Knapp,  3 
Pick.  (Mass.)  96. 

1  Moravia  v.  Levy,  2  T.  R.  483,  n.;  Foster  v.  Alanson,  2  id.  479.  An  account 
stated  may  be  recovered  although  the  original  contract  out  of  which  the  account 
grew  was  void  by  the  statute  of  frauds,  Cocking  v.  Ward,  1  C.  B.  858;  Seago  v. 
Dean,  3  C.  &  P.  170;  as  the  action  is  upon  the  account  stated,  and  not  for  the 
original  indebtedness.      Milward  v.  Ingram,  2  Mod.  43. 

2  Chase  v.  Trafford,  116  Mass.  529;  Sperry  v.  Moore,  42  Mich.  353. 

3  Freeland  v.  Heron,  7  Cranch  (U.  S.)  147;  Langdon  v.  Roane,  6  Ala.  518; 
Terry  v.  Sickles,  13  Cal.  427;  White  v.  Hampton,  10  Iowa  238;  Mansell  p. 
Payne,  18  La.  Ann.  124;  Wood  v.  Gault,  2  Md.  Ch    433;  Brown  v.  Vandyke,  8 

(.1)  See    Ibid.;     King    v.    Davis,    168  accounts  cannot  be    applied  to   stated 

M  IS9.    [33;   Fair  v.  Mevey,  50  N.  Y.  S.  accounts.     Carter  v.  Fischer  (Ala.),  28 

41J;   Gordon         Frazer,  13  App.  D.  C.  So.  376.     And  so  of  agreements  classi- 

\merican  Brewing  Co.  v.  Bc-rncr-  fied  as  specialties.     Searles  v.  Lum,  81 

•  Co  ,  83  III.  Apn.  446.     The  limi-  Mo.  App.  607. 

tation  prescribed  by  a  statute  as  to  open 


§  28o.]  MUTUAL   ACCOUNTS,   ETC.  6yi 

of  equity  will  not  open  it,  except  in  cases  where  there  have  been 
mutual  mistakes,  omissions,  fraud,  or  undue  advantage,  so  that 
the  balance  stated  is  in  truth  vitiated,  and  in  equity  ought  not  to 
stand.1  But  these  rules  relative  to  stated  accounts  are  held  not 
sufficient  to  enable  a  party  to  start  the  statute  afresh,  by  stating 
his  account,  where  the  statute  expressly  ignores  the  force  of  a 
new  promise  to  pay  such  balance  implied  from  such  statement, 
without  objection,  to  raise  a  new  promise  to  overcome  the  force 
of  the  statute  of  limitations,  as  such  action  by  a  party,  if  per- 
mitted, would  place  it  within  the  power  of  parties  to  abrogate  the 
provisions  of  the  statute  in  reference  to  the  effect  of  parol 
acknowledgments. 2 

N.  J.  Eq  795;  Coopwood  v.  Bolton,  26  Miss.  212;  Murray  v.  Toland,  3  Johns. 
(N.  Y.)  Ch.  569;  Consequa  v.  Fanning,  id.  587;  Atwater  v.  Fowler,  1  Edvv. 
(N.  Y.)  Ch.  417;  Phillips  v.  Belden,  2  id.  1;  Lockwood  v.  Thorne,  11  N.  Y.  170; 
Bruen  v.  Hone,  2  Barb.  (N.  Y.)  5S6;  Dows  v.  Durfee,  10  id.  213;  Beers  r.  Rey- 
nolds, 12  id.  288;  Tovvnley  v.  Denison,  45  id.  490;  Pratt  v.  Weyman,  1  McCord 
(S.  C.)  Ch.  156;  Tharp  v.  Tharp,  15  Vt.  105. 

1  Farnam  v.  Brooks,  9  Pick.  (Mass.)  212;   Roberts  v.  Totten,  13  Ark.  609;  Good- 
win v.  United  States  Ins.  Co.,  24  Conn.  591. 

2  Reed  v.  Smith,  1  Idaho,  533;  Weatherwax  v.  Consumnes  Valley  Mill  Co.,  17 
Cal.  344. 


6/2  STATUTES   OF   LIMITATION.  [CHAP.   XXIV. 


CHAPTER  XXIV. 
Set-off,  Recoupment  &c. 

Sec.  281.   Set-off,  when  Statute  begins  Claims  which  go  to  reduce 

to  run  against.  Plaintiff's  Claim. 

282.   Bringing  of  Action  suspends     Sec.   283.   Executor    may   deduct   Debt 
Statute  as  to  Defendant's.  due  Estate,  when. 

28+.   Statutory  Provisions  as  to. 

Sec  281.  Set-off,  when  Statute  begins  to  run  against.  —  The 
statute  of  limitations  is  not  only  applicable  to  a  claim  that  is  the 
subject-matter  of  the  action  against  which  it  is  pleaded,  but  it  is 
also  applicable  to  a  set-off  that  is  pleaded  by  a  defendant ;  and 
where  a  demand  upon  which  the  statute  has  run  is  set  up  in  bar 
of  an  action,  or  in  diminution  of  the  principal  debt,  the  plaintiff 
may  plead  the  statute  thereto;  or,  if  the  set-off  is  given  in  evi- 
dence under  a  notice,  the  statute  may  be  set  up  against  it  on  the 
trial.1  If  a  defendant  pleads  a  set-off,  the  plaintiff  may  reply  the 
statute;  but  a  set-off  is  available  as  a  simultaneous  cross-action 
would  be,  and,  if  it  is  to  be  barred  at  all,  must  be  barred  at  the 
time  of  the  commencement  of  the  action.  In  other  words,  the 
bringing  of  an  action  by  one  party  saves  from  the  operation  of 
the  statute  all  such  claims  of  the  defendant  against  the  plaintiff 
as  are  properly  the  subject  of  set-off,  and  which  are  in  fact  pleaded 
as  a  set-off  in  that  action.2  (a)     Where  there  are  cross-demands 

1  Hicks  v.  Hicks,  5  East,  16;  Harwell  v.  Steel,  17  Ala.  372;  Ruggles  v.  Keele, 
3  Johns.  (N.  Y.)  261;  Caldwell  v.  Powell,  6  Baxter  (Tenn.)  82.  In  Trtmyer  v. 
Pollard,  5  Gratt.  (Va.)  460,  it  was  held  that  where  the  defendant  does  not  plead 
a  set-off,  but  files  his  account  and  gives  notice  of  a  set-off,  as  the  plaintiff  cannot 
replv  the  statute,  he  is  at  liberty  to  rely  upon  it  at  the  trial.  Hinkley  v. 
Walters,  8  Watts  (Penn.)  260.  A  debt  which  upon  its  face  appears  to  be  barred 
cannot  be  used  as  a  sel-off  without  evidence  to  take  it  out  of  the  statute. 
Taylor  v.  Gould,  57  Penn.  St.  152;  Watkins  v.  Harwood,  2  G.  &  J.  (Md.)  307; 
Shoenberger  v.  Adams,  4  Watts  (Penn.)  430;  Levering  v.  Rittenhouse,  4  Whart. 
I  Peon.)  130. 

8  In  Walker  v.  Clements.  15  Q.  B.  1046,  the  plaintiff,  to  a  plea  of  set-off, 
replied  lhat  the  cause  of  set-off  "  did  not  accrue  within  six  years  "  of  the  plea; 

(a)  See  McDougald    v.   Hulet  (Cal.),  Peden  v.  Cavins,  134  Ind.  4Q4.     Under 

(,\    Par.    278;    Beecher   v.    Baldwin  (55  the    Alabama   and    California   statutes 

(    ,nn  1,    3    Am.    St.    Rep     57,    and    n.;  the    defendant's    answer    may    set    up 

Neville    -'.    Brock,    91    111.    App.     140;  a  counterclaim   which  was  not  barred 


,\  -'82. J  SET-OFF,   RECOUPMENT,   ETC.  673 

between  the  parties,  which  accrued  at  nearly  the  same  time,  both 
of  which  would  be  barred  by  the  statute,  and  the  plaintiff  has 
saved  the  statute  by  suing  out  process,  but  the  defendant  has 
not,  it  has  been  held  that,  nevertheless,  the  defendant  may  set 
off  such  demands.1 

SEC.  282.  Bringing  of  Action  suspends  Statute  as  to  Defendant's 
Claims  which  go  to  reduce  Plaintiff's  Claim.  —  The  bringing  of  an 
action  by  the  plaintiff  stops  the  running  of  the  statute  upon  all 
demands  due  from  him  to  the  defendant,  which,  in  that  action, 
are  the  proper  subject  of  a  set-off,2  and  which  are  in  fact  pleaded 
as  required  by  statute.3  Also,  it  seems  that  it  revives  a  claim 
which  is  actually  barred,  but  which  in  the  proper  subject  of 
recoupment  in  the  action,  as  damages  growing  out  of  the  same 
transaction.  Thus,  in  an  action  to  recover  the  price  of  goods 
sold,  unsoundness  may  be  set  up  by  way  of  defense,  although 
an    action    to    recover    damages    therefor    is    barred.4  (a)     So   in 

this  was  held  bad,  because  not  alleging  that  the  cause  of  the  set-off  did  not 
accrue  within  six  years  before  the  commencement  of  the  action.  In  an  action 
to  foreclose  a  mortgage,  the  defendant  may  plead  in  set-off  an  account  against 
a  firm  of  which  the  plaintiff  is  a  member,  and  that  the  statute  of  limitations  is 
not  a  bar  to  the  set-off.      Allen  z:  Maddox,  40  Iowa,  124. 

1  The  demands  were  similar,  and  relate  to  the  principal  claim.  Ord  v.  Rus- 
pini,  2  Esp.  569;   Mann  v.  Palmer,  3  Abb.  App.  Dec.  (N.  Y.)  162. 

2  Walker  ;•.  Clements,  supra;  Moore  v.  Lobbin,  26  Miss.  304;  McElwig  ?. 
James,  36  Ohio  St.  3S4.  But  see  Gilmore  v.  Reed,  76  Penn.  St.  462;  King  v. 
Coulter,  2  Grant's  Cas.  (Penn.)  77.  In  Pennsylvania  the  statute  runs  against 
the  plaintiff  until  the  issuing  of  his  writ,  and  against  the  defendant  until  the 
filing  of  his  plea.     McClure  v.  McClure,  1  Grant's  Cas.  (Penn.)  222. 

3Trimyer  z\  Pollard,  supra. 

*  Riddle  v.  Kreinbiehl,  12  La.  Ann.  297.  This  follows  from  the  rule  that  a 
person  seeking  to  enforce  a  claim  must  take  his  rights  subject  to  all  counter 
rights  of  the  defendant  incident  to  the  same  claim.  The  same  rule  is  also 
applied  to  a  defendant,  who,  when  he  insists  upon  the  allowance  to  him  of 
claims  upon  which  the  statute  has  run,  is  held  to  be  precluded  from  setling  up 
the  statute  against  similar  demands  put  in  by  the   plaintiff,   especially  when 

at    the    commencement  of  the    action,  not  run  to  prevent  him,  when  sued,  from 

Perkins  v.  West  Coast  Lumber  Co. ,  120  setting  up  any  equity  he  has  in  defense 

Cal.  27;   Dunham  Lumber  Co.  v.  Holt,  of  his  possession;  and  likewise,  in  an 

124  Ala.   181.      In  West   Virginia  lim-  action  of  ejectment,  such  person  may 

itation  runs   against  a  set-off  from  the  prove  any  equitable  defenses  in  favor 

time  when  it  is  filed.     Rowan  v.  Chino-  of  his   right  of  possession.     Stalf>v  v. 

weth  (W.  Va.),  38  S.  E.  544.  Housel,  35  Neb.  160;  Pinkham  v.  Pink- 

(a)   In  general,  so  long  as  a  party  in  ham  (Neb.),  83  N.  W.   837:    De  Guire 

the  peaceable  possession  of  land  is  not  v.  St.  Joseph  Lead  Co.,  38   Fed.   Rep. 

attacked,  the  statute  of  limitations  does  65. 
[stats,  of  lim.  —  43] 


674  STATUTES   OF   LIMITATION.  [CHAP.   XXIV. 

Georgia,  it  has  been  held  that  in  an  action  on  a  note  the  defend- 
ant is  not  precluded  from  setting  up  a  failure  of  consideration,  or 
a  parol  warranty  of  the  property  for  which  the  note  was  giv'en, 
and  a  breach  thereof,  although  an  action  upon  such  warranty,  is 
barred.1  So,  too,  the  statute  does  not  defeat  a  defense  of  partial 
payment,  although  the  statute  might  be  a  bar  to  an  action  to 
recover  therefor  if  it  stood  alone.2  So  it  has  been  held  in  Eng- 
land that  a  debt  otherwise  barred  may  be  a  good  set-off,  where 
there  has  been  an  express  agreement  that  the  debt  should  be 
applied  upon  the  demand  in  suit.3(tf) 

Sec.  283.  Executor  may  deduct  Debt  due  Estate,  when.  —  It 
has  also  been  held  that  an  executor  may  retain  a  debt  due  by  a 
legatee,  which  is  barred  by  the  statute  as  a  set-off  against  the 
legacy  to  him;4  and  the  same  rule  has  been  applied  as  to  admin- 
istrators, and  it  has  been  held  that  they  may  set  off  a  similar  debt 
against  the  debtor's  share  under  an  intestacy,  on  the  ground  that 
one  of  the  next  of  kin  of  an  intestate  can  take  no  share  of  the 

there  is  an  implied  agreement  that  one  shall  go  in  discharge  of  the  other  pra 
tanto,  as  in  matters  of  book  accounts.  Gulick  v.  Turnpike  Co.,  14  N.  J.  L.  545. 
In  Massachusetts,  the  filing  of  a  claim  in  set-off  commences  an  action  thereon, 
so  far  as  regards  limitation,  and,  if  the  plaintiff  discontinues  his  action,  the 
defendant  may  sue  thereon  within  three  months  thereafterwards,  although  the 
time  of  limitation  has  expired,  the  same  as  a  plaintiff  may  do  when  his  action 
has  failed  because  of  some  defect  in  process,  etc.  Hunt  v.  Spaulding,  18  Pick. 
(Mass.)  521. 

1  Munroe  v.  Hanson,  9  Ga.  398.  Thus,  where  an  action  was  brought  upon  a 
bond,  it  was  held  that  a  defense  of  payment  by  board  furnished  to  the  obligee, 
under  an  agreement  that  it  should  go  in  reduction  of  the  bond,  was  admissible, 
although  the  statute  had  run  upon  most  of  the  account.  See  als~>  Evans  v. 
Yongue,  8  Rich.  (S.  C.)  113  where,  in  an  action  upon  a  bond  given  for  the  price 
of  land,  a  defense  that  there  was  a  deficiency  in  the  quantity  of  land,  and  a 
consequent  partial  failure  of  the  consideration,  was  held  admissible,  although 
an  action  to  recover  therefor  would  have  been  barred.  See  also  Richardson  v. 
Bleight,  8  B.  Mori.  (Ky.)  580. 

5  King  v.  King,  9  N.  J.  Eq.  $\. 

3  Smith  v.  Winter    12  C.  B.  487;   Rowley  v.  Rowley,  1  Q.  B.  D.  463. 

♦Courteney  v.  Williams.  3  Hare,  539. 

(a)  When,  by  a  pledgee's  negligence,  the   debtor   will,    when   sued    on    such 

the    collection    of  collateral    securities  collateral,  plead  the  statute  in  defense, 

has  been  lost  under  the  statute  of  lim-  Hawley  Bros.  Hardware  Co.  v.  Brown- 

itations,  and  such  statutory  defense  has  stone,    123   Cal.    643,   649;    First    Nat. 

become    perfect,   the   pledgor  may  by  Bank   v.   O'Connell  (84  Iowa,  377),  3s 

counterclaim    recover  the   value  of  his  Am.   St.    Rep.  313,  and  n.     See  supra, 

collate!  i),  though  it  is  not  known  that  §  183  (ad finem). 


§  284.]  SET-OFF,   RECOUPMENT,   ETC.  675 

estate  until  he  has  discharged  his  obligation  to  it,  and  paid  the 
debt  in  full.1 

SEC.  2S4.  Statutory  Provisions  as  to.  —  In  Wisconsin,  by- 
statute,  the  commencement  of  an  action  by  the  plaintiff  is  treated 
as  the  commencement  of  an  action  by  the  defendant  upon  any 
debt  or  contract  which  can  properly  be  alleged  by  way  of  set-off, 
and  the  time  of  the  limitation  of  such  debt  is  to  be  computed  in 
the  same  manner  as  though  an  action  had  been  commenced 
thereon  at  the  time  when  the  plaintiff's  action  was  commenced ; 
and  if  the  statute  had  run  upon  the  set-off  at  that  time,  it  is 
barred  the  same  as  the  principal  debt  would  be,  and  if  the  plain- 
tiff's action  is  discontinued  or  dismissed,  the  time  between  the 
commencement  of  the  action  and  its  termination  is  not  computed 
as  any  part  of  the  time  for  the  running  of  the  statute  upon  the 
matter  alleged  by  way  of  set-off.2  So,  also,  in  Arkansas,  the 
statute  is  expressly  applied  to  any  debt  or  simple  contract  set  up 
as  a  set-off,  whether  by  plea,  motion,  or  otherwise.3  In  Michi- 
gan, a  similar  provision  to  that  contained  in  the  statute  of  Wis- 
consin exists;4  likewise  in  Massachusetts5  and  Vermont,6  and  also 
in  Maine,  where  the  statute  further  provides  that  if  the  plaintiff's 
action  fails  by  the  nonsuit  or  other  acts  of  the  plaintiff,  the 
defendant  alleging  the  set-off,  he  may  commence  a  new  action 
thereon  within  six  months  from  the  termination  of  the  suit.7 
But  these  statutory  provisions  are  only  confirmatory  of  the  doc- 
trine previously  stated,  as  held  under  statutes  which  contained 
no  such  exceptions.  The  wisdom  of  inserting  them  in  the  statute 
is  manifest,  in  that  the  rule  is  thus  made  permanent,  and  not  sub- 
ject to  question  or  exception. 

1  In  re  Cord  well's  Estate.  L.  R.  20  Eq.  644.  That  an  heir  who  is  claiming  a 
share  of  an  intestate's  estate  may  set  up  the  statute  in  bar  of  a  claim  due  from 
him  to  the  estate,  was  held  in  Drysdale's  Appeal,  14  Penn.  St.  531.  See  Rose 
v.  Gould,  21  L.  J.  Ch.  (N.  S.)  360,  contra,  which  case  seems  supported  by  those 
above  cited. 

5  See  Appendix,  Wisconsin. 

*  Appendix,  Arkansas. 

4  Appendix,  Michigan. 

8  Appendix,  Massachusetts. 

'Appendix,  Vermont. 

1  Appendix,  Maine. 


676  STATUTES   OF   LIMITATION.  [CHAP.    XXV. 


CHAPTER   XXV. 

CO-CONTRACTORS,   &C. 

Sec.  285.  Statutory  Provisions  as  to.        Sec.  287.    Present     Doctrine     in     this 
286.   Grounds    upon    which    Doc-  Country. 

trine  of  Whitcomb  v.  Whit-  288.    Assent  of  a  Co-contractor  to 

ing  is  predicated.  a  Part  Paymentbyanother, 

Effect  of. 

SEC.  285.  Statutory  Provisions  as  to.  —  The  doctrine  of  Whit- 
comb v.  Whiting,1  that  an  acknowledgment,  new  promise,  or  pay- 
ment, made  by  one  of  two  or  more  joint  contractors,  will  remove 
the  statute  bar  as  to  all,  has  practically  but  little  force  at  the 
present  day,  as  in  many  of  the  States 2  the  legislature  has  expressly 
overridden  it  by  providing  that  no  acknowledgment,  promise,  or 
part  payment  made  by  one  joint  debtor  shall  deprive  the  others 
of  the  benefit  of  the  statute;  while  in  others3  the  same  result  is 
practically  reached  by  a  provision  that  no  acknowledgment  or 
promise  shall  be  sufficient  to  revive  a  debt,  unless  it  is  made  in 
writing,  under  the  hand  of  the  party  to  be  charged  thereby;  and 
in  others,  the  courts,  without  any  express  legislation,  have  repu- 
diated the  doctrine  as  unsound,  predicated  upon  erroneous 
reasoning,  and  opposed  to  the  spirit  of  these  statutes,  (a) 
Especially    is    this    the    case    in     New     Hampshire,4    Pennsyl- 

1  Whitcomb  v.  Whiting,  Doug.  652. 

'Maine,  Vermont,  Massachusetts,  Arkansas,  Colorado,  Georgia,  Indiana, 
Mississippi,  Missouri,  North  Carolina,  Michigan,  Wisconsin,  Virginia,  and  West 

Virginia. 

3  New  York,  Alabama,  Iowa,  Minnesota,  Kansas,  South  Carolina,  Ohio. 
California,  Oregon,  Nevada,  Nebraska,  Texas,  Arizona,  Dakota,  Idaho, 
Montana,  Utah,  and  Wyoming. 

4  l.xeter  Bank  r.  Sullivan,  6  N.  II.  124;  Kellv  v.  Sanborn,  9  id.  46;  Whipple 
v.  Stevens,  22  id.  219.      In   Massachusetts,   Cady   v.   Shepherd,  n    Pick.  (Mass.) 

U   to  tin-  provision   of  the  Mer-         Under  the  Michigan  statutes  a  joint 

le     Law    Amendment   Act,    1856,  maker   of   a   note   does    not    lose    the 

•    11,   that   no  contractor  or  co-debtor  benefit   of    the    statute    by   payments 

shall    loose   tin-    benefil   <>f   thai      nacl  made  by  another  joint  maker       Rogers 

menl  bv  reason  of  the  payment  of  any  v.  Anderson,  40  Mich.  290.     And  so  as 

prini  ipal  or  interesl  by  a  co  contractor  a  payment  made  l>v  a  husband  without 

or  co-debtor,  see  In  re  Frisby,  43  Ch.  his  wife's  authority.     Curtiss  v.  Perry 

I;    .  (Mich.),  S5  N.  W.  1131. 


§  285.]  CO-CONTRACTORS,   ETC.  677 

vania,1  Tennessee,2  Kansas,3  Florida,4  Maryland,5  Illinois,6  and  by 

400;  Sigourney  v.  Drury,  14  Gray  (Mass.)  387;  Connecticut,  Clark  v.  Sigourney, 
17  Conn.  511;  Maine,  Parker  v.  Merrill,  6  Me.  41;  Shepley  v.  Waterhouse,  22 
id.  497;  Vermont,  Wheelock  v.  Doolittle,  iS  Vt.  440;  North  Carolina,  Mclntire 
;•.  Oliver,  2  Hawks  (N.  C.)  209;  Virginia,  Rhode  Island,  New  Jersey,  and  Dela- 
ware,   the  doctrine  of  Whitcomb  v.  Whiting,  has  been  approved  and  followed; 

but  in  all  those  States  except  Connecticut,  New  Jersey,  Rhode  Island,  and 
Delaware,  the  legislature  has  repudiated  the  doctrine  and  forced  the  courts  to 
recede  from  it.  But  in  Pennsylvania,  Kentucky,  New  York,  New  Hampshire, 
Tennessee,  Indiana,  Alabama,  Kansas,  Nebraska,  Illinois,  Florida,  Ohio, 
Maryland,  Georgia.  South  Carolina,  and  North  Carolina,  the  doctrine  was 
repudiated  by  the  courts,  either  wholly,  or  except  as  to  partners,  before  the 
legislature  in  any  of  them  had  placed  any  restraint  upon  the  courts  in  that 
respect. 

1  Levy  v.  Cadet,  17  S.  &  R.  (Penn.)  126;  Searight  v.  Craighead,  1  P.  &  W. 
(Penn.)  135;  Reppert  v.  Colvin,  48  Penn.  St.  248;  Bush  v.  Stowell,  71  id.  208; 
Van  Keuren  v.  Parmalee,  2  N.  Y.  523,  is  a  leading  case  in  opposition  to  Whit- 
comb  z:  Whiting,  supra,  where  Bronson,  J.,  said  in  part:  "  If  the  promise  is 
not  express,  the  case  must  be  such  that  it  can  be  fairly  implied.  There  must, 
at  the  least,  be  a  plain  admission  that  the  debt  is  due,  and  that  the  party  is 
willing  to  pay  it.  Allen  v.  Webster,  15  Wend.  (N.  Y.)  284;  Stafford  v.  Richard- 
son, id.  302;  Bell  v.  Morrison,  1  Pet  (U.  S.)  362.  It  is  the  new  promise  and 
not  the  mere  acknowledgment  that  revises  the  debt  and  takes  it  out  of  the 
statute.  Rosevelt  v.  Mark,  6  Johns.  (N.  Y.)  Ch.  290.  This  doctrine  is  sustained 
by  many  decisions  in  other  State?.  The  case  of  Whitcomb  v.  Whiting  has,  to 
a  limited  extent,  been  followed  in  Massachusetts,  Cady  v.  Shepherd,  11  Pick- 
(Mass.)  400;  Bridge  v.  Gray,  14  id.  55;  Sigourney  v.  Drury,  id.  387,  391,  392; 
Vinal  v.  Burrill,  16  id.  401;  in  Connecticut,  Bond  v.  Lathrop,  4  Conn.  336;  Coit 
v.  Tracy,  8  id.  268;  Austin  v.  Bostwick,  9  id.  496;  Clark  v.  Sigourney,  17  id.  511; 
in  Maine,  Parker  v.  Merrill,  6  Me.  41;  Pike  v.  Warren,  15  id.  390;  Dinsmore  v. 
Dinsmore,  21  id.  433;  Shepley  v.  Waterhouse,  22  id.  4g7;  and  in  Vermont, 
Joslyn  v.  Smith,  13  Vt.  353;  Wheelock  v.  Doolittle,  18  id.  440.  But  I  think  the 
judgment  under  review  would  not  be  upheld  in  either  of  those  States.  In  North 
Carolina  it  has  been  held  that  the  acknowledgment  of  the  debt  by  one  partner, 
though  after  the  dissolution,  will  prevent  the  operation  of  the  statute.  Mclnlire 
v.  Oliver,  2  Hawks  (N.  C.)  209.  And  the  same  has  been  decided  in  Georgia^ 
provided  the  new  promise  is  made  before  the  action  is  barred;  but  not  when 
the  new  promise  is  made  afterwards,  as  it  was  in  the  case  before  us.  Brewfter 
v.  Hardeman,  Dudley  (Ga.)  138.  It  has  been  decided  by  the  Court  of  Appeals, 
in  South  Carolina,  that  a  promise  by  one  partner  made  after  the  dissolution, 
and  after  the  statute  had  run,  will  not  charge  the  other  partner.  Steele  v. 
Jennings,  1  McMull.  (S.  C.)  297.     In  the  Exeter  Bank  v.  Sullivan,  6  N.  H.  124, 


3  Belote  v   Wynne,  7  Yerg.  (Tenn)  534;  Muse  v.  Dcnelson.  2  Humph.  (Tenn.) 
166. 

3  Steele  v.  Soule,  20  Kan.  39. 

4  Tate  •'.  Clements,  16  Fla.  339. 
3Schindel  v.  Gates,  46  Md.  6oj 

6  Kallenbach  v.  Dickinson,  100  III.  427. 


678  STATUTES   OF   LIMITATION.  [CHAP.   XXV. 

the  United  States  Supreme  Court;1  while  in  Connecticut,  New 
Jersey,  Rhode  Island,  and  Delaware  the  doctrine  of  Whitcomb  v. 
Whiting  is  still  adhered  to.  It  is  not  necessary  to  discuss  the 
accuracy  of  this  doctrine,  as  it  has  been  attacked  and  also  sus- 
tained by  some  of  the  ablest  judges  in  this  country;  and  the 
judgment  of  the  profession,  as  well  as  of  the  people  generally,  as 
to  the  wisdom  of  the  doctrine  is  best  evidenced  by  the  circum- 
stance that  it  has  been  nearly  obliterated  by  legislative  and 
judicial  action. 

SEC.  286.  Grounds  upon  which  Doctrine  of  "Whitcomb  v.  Whit- 
ing is  predicated.  —  The  ground  upon  which  the  doctrine  of 
Whitcomb  v.  Whiting  was  predicated  is,  that  in  the  case  of 
co-contractors  each  is,  with  reference  to  the  joint  debt,  the  agent 
of  the  others.  "Payment  by  one,"  said  Lord  Mansfield,  "is 
payment  for  all,  the  one  acting  virtually  as  the  agent  of  the  rest ; 
and  in  the  same  manner  an  admission  by  one  is  an  admission  by 
all;  and  the  law  raises  the  promise  to  pay  when  the  debt  is 
admitted  to  be  due. ' '  However  this  might  be  in  the  case  of  part- 
ners, it  is  difficult  to  understand  upon  what  ground,  in  the  case 
of  co-sureties  and  other  joint  indebtedness,  one  can  be  said  to  be 
an  agent  for  the  others,  as  to  that  transaction,  or  upon  what 
ground  an  implied  agency  can  be  raised.2     "There  is  nothing 

the  authority  of  Whitcomb  v.  Whiting  was  wholly  denied;  and  the  court  held 
that  a  payment  by  one  of  the  joint  makers  of  a  promissory  note  did  not  take 
the  case  out  of  the  statute  as  to  the  other.  In  Alabama,  a  promise  hv  the  princi- 
pal debtor  will  not  revive  the  demand  against  a  co-debtor,  who  is  a  surety. 
Lowther  v.  Chappel,  8  Ala.  353.  In  Tennessee,  a  promise  by  one  partner,  after 
the  dissolution  of  the  partnership,  to  pay  a  note  made  by  the  firm,  does  not  take 
the  case  out  of  the  statute  of  limitations  as  to  the  other  partner.  Belote  v. 
Wynne,  7  Yerg.  (Tenn.)  534;  Muse  v.  Donelson,  2  Humph.  (Tenn.)  166.  This 
is  also  the  rule  in  Pennsylvania.  Levy  v.  Cadet,  17  S.  &  R.  (Penn.)  126; 
Searicjht  v.  Craighead,  1  P.  &  W.  (Penn.)  135.  It  is  also  held  in  Indiana  that 
the  power  of  one  partner  to  bind  the  other  by  the  admission  of  a  debt  ceases 
with  the  partnership.  Yandes  v.  Lefavour,  2  Blackf.  (Ind.)  371.  And  in  Bell 
v.  Morris-m,  I  Pet.  (U.  S.)  351,  the  United  States  Supreme  Court  followed  the 
decisions  in  Kentucky,  and  held  that  this  dissolution  of  the  partnership  put  an 
<-n<\  lo  the  authority  of  the  partners  to  bind  each  other  by  any  new  engagement; 
and  (  onsequently  that  the  acknowledgment  of  a  debt  by  one  partner,  after  the 

ilution,  would  not  take  the  case  out  of  the  statute  of  limitations." 
1  Bell  v.  Morrison,  1    Pet.  (U.  S.)  251. 

ee  Van  Keuren  v.  Parm  dee,  2  N.  Y.  523;  Smith  v.  Caldwell.  15  Rich.  (S. 
I  1  Zent  v.  Mart,  B  Penn.  St.  3-^7;  Siirourney  v.  Drury,  14  Pick.  (Mass.) 
387;    Ruckcr  v.  Frazicr,  4  Strobh.  (S.  C.)  93;  Cleveland  v.  Harrison,  15  Wis.  670. 


§  287.]  CO-CONTRACTORS,   ETC.  679 

in  the  relation  of  joint  debtors,"  said  Bronson,  J.,  in  the  case 
last  cited,  "  from  which  such  an  agency  can  be  inferred.  A  joint 
obligation  is  the  only  tie  which  links  them  together;  and  from 
the  nature  of  the  case,  payment  of  the  debt  is  the  only  thing 
which  one  has  authority  to  do  for  all."  It  is  held  in  New  York 
that  one  joint  debtor  cannot  by  a  payment  made  by  him  upon 
the  joint  debt,  before  the  statute  has  run  upon  the  debt,  as 
to  them,  suspend  the  operation  of  the  statute,1  and  much  less 
after  the  statute  has  run,2  unless  such  payment  was  made  by  one 
of  the  joint  debtors,  by  the  direction  of  the  other,  so  that  a  direct 
agency  is  established  as  to  such  payment.3 

Sec.  287.  Present  Doctrine  in  this  Country.  —  Except  in  the 
four  States  already  referred  to,  the  doctrine  in  reference  to  joint 
debtors  —  except  partners — may  be  said  to  be,  that  one 
co-debtor  can  neither  suspend  nor  remove  the  statute  by  an 
admission  of,  or  promise  to  pay,  the  joint  debt,  nor  by  a  partial 
payment  thereof,  out  of  his  own  funds,  without  the  direction, 
assent,  or  subsequent  ratification  of  his  co-debtors.4     In  reference 

•Shoemaker  v.  Benedict,  n   N.  Y.  176;  Dunham  v.  Dodge,  10  Barb.  (N.  Y.) 
566. 
*  Payne  v.  Slate,  39  Barb.  (N.  Y.)  634. 

3  Haight  v.  Avery,  16  Hun  (N.  Y.)  252. 

4  Exeter  Bank  v.  Sullivan,  6  N.  H.  124;  Bell  v.  Morrison,  1  Pet.  (U.  S.)  351; 
Whipple  v.  Stevens,  22  N.  H.  2ig;  Levy  v.  Cadet,  17  S.  &  R.  (Penn.)  126;  Van 
Keuren  v.  Parmalee,  supra.  In  United  States  v.  Wilder,  13  Wall.  (U.  S.)  254, 
it  was  held  that  when  a  debtor  admits  a  certain  sum  to  be  due  by  him.  and 
denies  that  a  larger  sum  claimed  is  due,  a  payment  of  the  exact  amount  admit- 
ted cannot  be  converted  by  the  creditor  into  a  payment  on  account  of  ihe  larger 
sum  denied,  so  as  to  take  the  claim  for  such  larger  sum  out  of  the  statute.  See 
also  Exeter  Bank  v.  Sullivan,  6  N.  H.  124;  Kelly  r.  Sanborn,  q  N.  H.  46;  Whip- 
ple v.  Stevens,  22  N.  H.  219;  Levy  v.  Cadet,  17  S.  &  R.  (Penn.)  126,  holds  that 
payment  on  account,  or  an  acknowledgment,  by  one  of  two  or  more  joint  debt- 
ors, will  not  take  the  case  out  of  the  statute  as  to  the  others.  See  also  Coleman 
v.  Forbes,  22  Penn.  St.  156;  Searight  v.  Craighead,  1  P.  &  W.  (Penn.)  135; 
Houser  v.  Irvine,  3  W.  &  S.  (Penn.)  345;  Schoneman  v.  Fegley,  7  Penn.  St.  208. 
In  Yandes  v.  Lefavour,  2  Blackf.  (Ind.)  371,  it  was  held  that  an  acknowledg- 
ment of  a  debt  made  by  one  partner,  after  the  dissolution  of  the  partnership,  is 
not  sufficient  to  take  a  case  out  of  the  statute  as  to  the  others.  See  Shoemaker 
v.  Benedict,  11  N.  Y.  176;  Winchell  v.  Smith,  18  N.  Y.  55S;  Kallenbach  v.  Dick- 
inson, 100  111.  427.  In  Lowther  v.  Chappell,  S  Ala,  353,  it  was  held  that  "  a 
payment  by  one  of  several  joint  debtors,  before  the  statute  has  completed  a  bar, 
will  not  prevent  the  completion  of  the  bar  as  to  the  others,  at  the  expiration  of 
the  time  within  which  the  statute  required  suit  to  be   brought  on  the  original 


680  STATUTES   OF   LIMITATION.  [CHAP.  XXV.. 

to  partners  more  conflict  exists,  and  inasmuch  as,  without  ques- 
tion, while  the  partnership  exists  each  partner  is  agent  for  the 
others,  it  is  held  in  all  the  States  that,  while  the  partnership  exists, 
one  partner  can  bind  the  others  by  an  admission  or  part  payment 
where  it  is  made  according  to  the  requirements  of  the  statute, 
and  in  the  name  and  on  behalf  of  the  firm ;  and  where  the  admis- 
sion or  payment  is  made  in  reference  to  a  partnership  transaction, 
it  is  treated  as  having  been  made  on  behalf  of  the  firm.  But  as, 
when  the  partnership  is  dissolved,  the  agency  of  each  partner  to 
act  for  the  firm  is  generally  treated  as  having  been  revoked,  it  is 
held  in  most  of  the  States  that  an  admission  or  payment  made 
after  such  dissolution  does  not  have  the  effect  to  revive  the  debt 
against  the  firm ;  1  while   in  others  it  is  held  that  such  admissions 

evidence  of  debt,  relied  on  to  sustain  the  action."  Myatts  v.  Bell,  41  Ala.  222; 
Knight  v.  Clements,  45  id.  89;  Belote  v.  Wynne,  7  Yerg.  (Tenn.)  534;  follows 
Bell  v.  Morrison,  as  does  Muse  v.  Donelson,  2  Humph.  (Tenn.)  166.  See  also 
Palmer  v.  Dodge,  4  Ohio  St.  21.  More  recently,  in  Kansas,  Nebraska,  and 
Florida,  the  doctrine  of  Whitcomb  v.  Whiting  is  repudiated,  and  that  of  Bell  v. 
Morrison  followed.  Steele  v.  Souder,  20  Kan.  39;  Mayberry  v.  Willoughby.  5 
Neb.  368;  Tate  v.  Clements  16  Fla.  339.  Like  reasoning  will  also  be  found  in 
Steele  v.  Jennings,  1  McMull.  (S.  C.)  297;  Foute  v.  Bacon,  24  Miss.  156;  Briscoe 
v.  Anketell,  28  id.  361.  The  earlier  decisions  in  New  York  following  Whitcomb 
v.  Whiting  (see  Johnson  v.  Beardslee,  15  Johns.  (N.  Y.)  3;  Patterson  v.  Choate,  7 
Wend.  (N.   Y.)  441),   were  overruled  in  1849,  in  Van   Keuren  v.  Parmalee,  2  N. 

Y.  523- 

1  Van  Keuren  v.  Parmalee,  supra;  Tate  v.  Clements,  16  Ha.  339;  Yandes  v. 
Lefavour,  2  Blackf.  (Ind.)  371 ;  Palmer  v.  Dodge,  4  Ohio  St.  21 ;  Foute  v.  Bacon, 
24  Miss.  156;  Briscoe  v.  Anketell,  28  id.  361;  Whipple  v.  Stevens,  22  N.  H.  219; 
Bush  v.  Stowell,  71  Penn.  St.  208;  Schoneman  v.  Fegley,  7  Penn.  St.  433; 
Knight  v.  Clements,  45  Ala.  89;  Kallenbach  v.  Dickinson,  100  111.  427.  In  Bell 
v.  Morrison,  1  Pet.  (U.  S.)  351,  the  statute  of  limitations  had  run  before  the 
promise  or  admission  by  one  of  the  partners  was  made.  See  3  Kent's  Com., 
Lect.  48:  Hackley  v.  Patrick,  3  Johns.  (N.  Y.)  536;  Walden  7.  Sherburne,  15 
Johns.  (N.  Y.)  424;  Baker  v.  Stackpoole,  9  Cow.  (N.  Y.)  420.  The  decision  in 
Whitcomb  v.  Whiting,  supra,  is  said  to  have  been  in  direct  conflict  with  Bland 
v.  Haselrig,  2  Vent.  151.  In  Shoemaker  v.  Benedict,  n  N.  Y.  176,  where  pay- 
ments were  made  by  one  of  several  joint  makers  of  a  note  before  the  statute  of 
limitations  had  run  upon  it,  it  was  held  that  such  payments  did  not  affect  the 
defense  of  the  statute  as  to  the  other  debtors.  In  Tennessee,  Pennsylvania, 
Indiana,  Illinois,  Florida,  Kentucky,  New  Hampshire,  Alabama,  Kansas",  and 
Neoraska  this  doctrine  would  seem  to  be  held,  carrying  out  the  principle  of 
dei  ided  cases.  After  a  joint  debt  has  been  barred  by  the  statute,  part  payment 
by  'me  joint  debtor  does  not  revive  the  debt  as  to  the  others.  Biscoe  v.  Jenkins, 
10  Ark.  108;  Mason  v.  Howell,  14  id.  !<)<>■  And  this  rule  holds  as  to  a  payment 
made  by  one  partner  after  the  partnership  is  dissolved.  Myatts  v.  Bell,  41  Ala. 
222       In   Emmons        Overl  in,  i->   i'>.   Mon.   (Ky.)  643,  it  was   held   that  apart 


§  287.]  CO-CONTRACTORS,  ETC.  68 1 

or  part  payments  made  after  the  dissolution,  but  before  the 
statute  has  run,  will  be  operative  as  against  the  others.1  In 
others  it  has  been  held  that  a  part  payment  made  by  one  partner 
after  the  dissolution,  and  after  the  statute  has  run,  will  bind  all.2 
From  this  conflict  it  will  be  seen  that  it  is  impossible  to  formu- 
late any  general  rule  relative  to  the  power  of  one  copartner  to 

payment  made  by  a  surety  after  all  right  of  action  upon  the  note  is  barred  does 
not  renew  the  note  as  to  the  balance.  Where  the  maker  and  indorser  of  a  note 
are  sued  jointly,  proof  that  the  indorser  made  payments  at  different  times 
within  six  years  will  not  vary  or  affect  the  liability  of  the  maker,  or  deprive 
him  of  the  advantages  of  the  bar  of  the  statute.  Bibb  v.  Peyton,  19  Miss.  275. 
Nor  will  a  payment  made  by  one  of  two  sureties  remove  the  statute  bar  as  to 
the  other.  Exeter  Bank  v.  Sullivan,  6  N.  H.  124.  In  New  York  an  acknowl- 
edgment or  promise  to  pay  a  debt,  or  a  part  payment  made  by  one  of  several 
partners  after  dissolution  of  a  firm,  or  by  one  of  joint  and  several  debtors,  will 
not  renew  the  debt  against  the  others,  under  the  statute  of  limitations.  New 
York  Life  Ins.  Co.  v.  Covert,  29  Barb.  (N.  Y.)  435.  Payment  of  interest  on  a 
note  by  one  of  two  joint  makers,  at  the  request  of  the  other,  is  sufficient  to 
take  the  debt  out  of  the  statute  of  limitations,  as  against  both  the  makers. 
Munro  v.  Potter,  34  Barb.  (N.  Y.)  58.  See  also  Searight  v.  Craighead,  1  Penn. 
135;  Brewster  v.  Handman,  Dudley  (Ga.)  13S;  Levy  v.  Cadet,  17  S.  &  R. 
(Penn.)  126;  Yandes  v.  Lefavour,  2  Blackf.  (Ind.)  371;  Belote  v.  Wynne,  7  Yerg. 
(Tenn.)  534. 

1  Mayberry  v.  Willoughby,  5  Neb.  368;  Schindel  v.  G  ites,  46  Md.  604;  Beards- 
ley  v.  Hall,  36  Conn.  270;  Green  v.  Greensboro  Female  College,  83  N.  C.  449; 
Merritt  v.  Day,  38  N.  J.  L.  32.  But  in  North  Carolina,  though  the  power  of 
one  partner  to  bind  the  others  by  an  admission  or  part  payment  is  expressly 
taken  away  by  statute,  the  power  of  one  joint  maker  of  a  note  to  bind  the 
others  by  an  admission  or  payment  before  the  statute  has  run  is  retained. 
The  court,  in  Schindel  v.  Gates,  supra,  seems  to  assent  to  the  doctrine  of  Whit- 
comb  v.  Whiting;  referring  to  Ellicott  v.  Nichols,  7  Gill  (Md.)  86,  it  said:  "  The 
court,  in  Ellicott  v.  Nichols,  fully  recognized  the  decision  of  Whitcomb  v.  Whit- 
ing, and  said  that  the  part  payment  of  principal  and  the  payment  of  interest 
relied  on  to  take  the  case  out  of  the  bar  was  made  within  the  legal  time  and 
before  the  statute  had  attached.  The  rule  thus  laid  down  has  been  the  accepted 
law  of  this  State  for  nearly  thirty  years,  and,  in  the  absence  of  legislation  to 
the  contrary,  it  is  not  to  be  questioned.  The  same  rule  has  received  the  sanc- 
tion of  the  highest  courts  in  other  States.  Selltey  v.  Sel'tey,  2  Hill  (S.  C.)  496; 
Steele  v.  Jennings,  1  McMull.  (S.  C.)  297;  Goudy  v.  Gillam,  6  Rich.  (S.  C.)  28; 
Mclntire  v.  Oliver,  2  Hawks  (N.  C.)  209;  Walton  v.  Robinson,  5  Ired.  (N.  C.) 
341;  Emmons  v.  Overton,  18  B.  Mon.  (Ky.)  643.  In  regard  to  the  supposed 
hardship  of  the  rule  as  against  sureties  to  a  note,  the  answer  is,  that  it  is  always 
in  their  power  to  inquire  whether  it  has  been  paid,  and,  if  it  remains  unpaid, 
to  compel  the  holder  to  proceed  against  the  principal,  or  to  pay  the  note  and 
proceed  in  their  own  name." 

''  Mix  v.  Shattuck,  50  Vt.  421.  And  this  seems  also  to  be  the  rule  in  England. 
See  Goodwin  v.  Parton,  42  L.  T.  N.  S.  568. 


682  STATUTES   OF   LIMITATION.  [CHAP.   XXV. 

revive  a  debt  as  to  the  others,  but  that  the  doctrine  held  in  a. 
given  State  must  be  consulted.1 

Sec.  288.  Assent  of  a  Co-contractor  to  a  Part  Payment  by 
another,  Effect  of.  — While  in  most  of  the  States  a  part  payment 
made  by  one  joint  debtor  will  not  suspend  or  remove  the  statute 
bar  as  to  the  others,  yet,  even  where  the  statute  provides  that  an 
acknowledgment  or  part  payment  made  by  one  joint  debtor  shall 
not  remove  the  statute  bar  as  to  the  others,  it  is  held  that  where 
such  part  payment  is  made  by  the  direction  or  at  the  request  of 
the  others,  they  are  all  equally  bound  thereby,  as  in  such  case 
the  one  making  the  payment  acts  as  the  agent  of  the  others.2 
The  assent  of  a  surety  to  a  part  payment  by  the  principal  may  be 
inferred.3  And  it  seems  that  where  money  is  paid  by  a  surety  in 
the  presence  of  the  principal,  and  the  latter  does  not  dissent 
thereto,  or  say  anything,  his  silence  may  be  treated  as  an  acqui- 
escence in  such  payment,  so  as  to  remove  the  statute  bar  as  to 
both.4     If  one  co-contractor  procures  a  payment  to  be  made  by 

'See  Smith  v.  Ludlow,  6  Johns  (N.  Y.)  267;  Burnett  v.  Snyder,  45  N.  Y. 
Super.  Ct.  577. 

5  See  Haight  v.  Avery,  16  Hun  (N.  Y.)  252;  Pitts  v.  Hunt,  6  Lans.  (N.  Y.)  146; 
National  Bank  of  Delaware  v.  Cotton,  53  Wis.  31.  In  Winchell  v.  Hicks,  18  N. 
Y.  558,  where  sureties  on  a  joint  and  several  note  were  called  upon  for  pay- 
ment, and  they  directed  the  holder  to  call  for  payment  upon  the  principal,  who 
made  a  payment  on  the  nole,  it  was  held  such  an  acknowledgment  as  to  arrest 
the  running  of  the  statute  against  him.  In  Huntington  v.  Ballou,  2  Lans.  (N. 
Y.)  120,  where  the  maker  paid  interest  on  the  note,  reciting  in  the  receipt  lhat 
it  was  made  by  an  accommodation  indorser,  by  the  hand  of  the  maker,  and  the 
indorser,  when  afterwards  shown  the  receipt  by  the  holder,  examined  il  and 
expressed  his  approval  of  it,  it  was  held  that  the  payment  took  the  case  out  of 
the  statute,  as  to  such  indorser.  See  First  Nat.  Bank  of  Utica  v.  Ballou,  49  N. 
Y.  155,  approving  this  case,  and  holding  that  the  requirement  of  the  statute, 
that  an  acknowledgment  or  promise  to  take  a  case  out  of  the  operation  of  the 
statute  must  be  in  writing,  does  not  alter  the  effect  of  a  payment  of  principal 
or  interest.  The  case  of  Harper  v.  Fairley,  53  N.  Y.  442,  depended  simply  on 
the  question  whether  the  maker  of  the  note  had  knowledge  of  and  assented  to 
the  payment  made  upon  it  by  another. 

3  If  a  debtor  and  his  surety  go  to  the  creditor  together,  for  the  express  pur- 
pose of  making  a  payment,  and  for  that  alone,  and  both  apparently  co-operate 
in  the  transaction,  though  the  debtor  alone  handles  the  money,  the  creditor 
may  consider  it  a  joint  payment  binding  the  surety  under  the  statute  of  limita- 

Uflless  the  surety  notifies  him  that  it  is  not  so.  Mainzinger  v.  Mohr,  41 
Mi  h.  685.  The  admissions  of  one  joint  debtor  are  not  evidence  against  thi 
others.     Rogers  v.  Anders  »n,  40  Mich.  290. 

4  Whipple  v.  Stevens,  22  N.  H.  219.     But  see  Quimby  v.  Putnam,  28  Me.  419, 

ield  ili  'i  a  payment  by  one  of  two  joint  debtors,  in  the  presence 


§  288.]  CO-CONTRACTORS,   ETC.  683 

his  co-debtor,  it  is  sufficient  to  bind  him.1  But  even  though  the 
money  is  paid  by  one  co-contractor  for  another,  zvith  funds  of 
the  other,  and  as  his  agent,  and  he  so  informs  the  creditor,  at 
the  time,  he  is  not  bound  thereby ;  and  such  payment  does  not 
remove  the  statute  bar  as  to  him.2  But  the  question  as  to  whether 
there  has  been  an  assent  by  one  co-debtor  to  a  payment  made 
upon  the  joint  debt  by  another  is  a  mixed  question  of  law  and 
fact,  to  be  determined  in  view  of  all  the  circumstances  attending 
the  transaction. 

of  the  other,  is  not  evidence  of  a  new  promise  made  by  both.  See  also  Patch 
v.  King,  29  Mo.  448.  Payments  authoritatively  made  by  the  treasurer  of  a 
partnership  or  joint-stock  company,  from  (he  pratnership  funds,  and  by  him 
indorsed  on  a  note  executed  by  the  partnership,  take  the  note  out  of  the  statute. 
Walker  v.  Wait,  50  Vt.  668. 

1  MiConnell  v.  Merrill,  53  Vt.  147. 

!  Bailey  v.  Corliss,  51  Vt.  366. 


684  STATUTES   OF   LIMITATION.  [CHAP.   XXVI. 


CHAPTER  XXVI. 

Judicial  Process. 

Sec.  289.  When    Action  is    treated    as     Sec.  293.   Mistaken  Remedy,  etc. 
commenced.  294.   Amendment  of  Process. 

290.  Statutory    Provisions    relat-  295.   Must  be  Action  at  Law. 

ing  to.  296.  Abatemeni  of  Writ,  Dismissal 

291.  Date  of  Writ  not  Conclusive.  of  Action,  Reversalof  Judg- 

292.  Filing    Claim     before    Com-  ment,  etc. 

missioners.    Pleading,  Set- 
off, etc. 

SEC.  289.  When  Action  is  treated  as  commenced.  —  The  ques- 
tion as  to  when  an  action  is  commenced,  within  the  meaning  of 
the  statute,  is  one  which  has  been  variously  decided.  In  some 
of  the  States,  the  statute  itself  settles  this  question,  but  where 
the  statute  is  silent  upon  this  point,  it  may  be  said  that  an  action 
is  commenced  when  the  writ  is  issued.  That  is,  when  it  is  filled 
out  and  completed  with  an  intention  of  having  it  served.1  In  any 
event,  the  issue  of  a  process  and  giving  it  to  an  officer  for  service, 
or  depositing  it  in  a  place  designated  or  provided  by  an  officer  for 
that  purpose,  clearly  amounts  to  a  commencement  of  an  action.2  (a) 
Formerly  the  question  as  to  when  an  action  could  be  said  to  have 
been  commenced,  so  as  to  save  a  debt  from  the  operation  of  the 

1  Jackson  v.  Brooks,  14  Wend.  (N.  Y.)  649;  Lowry  v.  Lawrence,  1  Cai.  (N.  Y.) 
69;  Ross  v.  Luthet,  4  Cow.  (N.  Y.)  158;  Burdick  v.  Green  18  Johns.  (N.  Y.)  14; 
Cheetham  v.  Lovis,  3  id.  43;  Fowler  v.  Sharp,  15  id.  323;  Cox  v.  Cooper,  3  Ala. 
256;  Schroeder  v.  Ins.  Co.,  104  111.  71:  Feazle  v.  Simpson,  2  111.  30;  Ford  v. 
Phillips,  1  Pick.  (Mass.)  202;  Seaver  v.  Lincoln,  21  id.  267;  Mason  v.  Cheney, 
47  N.  H.  24;  Parker  v.  Colcord,  2  N.  H.  36;  Society,  etc.,  v.  Whitcomb,  2  id. 
227;  Hardy  v.  Corliss,  21  N.  H.  356;  Day  v.  Lamb.  7  Vt  426;  Hail  v.  Spencer, 
1  R.  I.  17;  Johnson  v.  Farwell,  7  Me.  370;  Updike  v.  Ten  Broock,  32  N.  Y.  L. 
105. 

''  Michigan,  etc..  Bank  v.  Eldred,  130  U.  S.  693. 

(//)  See  Gough  7'.  McFall,  5?  N.  Y.  S.  27;  Thompson  v.  German    Ins.  Co".,  76 

221;   McKee  v.  Allen,  94  111.  App.  147.  Fed.    Rep.    892;    Fidelity    Ins.    Co.    v. 

The   running  of   the  statute  of   limita-  Roanoke  Iron  Co.,  81  id.  439,  4-2.     See 

lions    is    stopped    by    the    filing    of    a  McDonald   v.    Nebraska,    101    id.    171; 

<  reditor's  bill   and  a  decree  thereon,  or  Peabody    v.    Tenney.     18     R.     I.    4qS; 

by  a  valid  assignment  for  creditors,  as  Taber  v.  Royal   Ins.  Co.,  124  Ala.  08l, 

to    creditors    who    come    in    under    its  689;     Richardson   v.  Chanslor,  103  Ky. 

terms      Richmond  v.   Irons,  121  U.S.    425. 


§  290-] 


JUDICIAL    PROCESS. 


685 


statutes,  was  one  of  great  importance,  and  over  which  there  was 
some  confusion  and  conflict  of  doctrine.  But  the  general  rule 
adopted  was,  and  is,  except  where  otherwise  provided  by  statute, 
that  the  statute  is  suspended  from  the  time  of  the  suing  out  of  the 
writ,  and  its  bona  fide  delivery  to  a  proper  officer  for  service.1^) 
The  writ  may  be  sent  to  the  sheriff  for  service  by  mail,  and  if  it 
fails  to  reach  him  without  any  fault  on  the  part  of  the  plaintiff, 
that  is,  if  it  was  seasonably  deposited  by  him  or  some  person  for 
him  in  the  post-office,  and  except  for  unusual  delay  or  accident 
in  the  transmission  of  the  mail  it  should  have  seasonably  reached 
the  sheriff,  the  plaintiff  will  not  be  prejudiced.2 

SEC.  290.  Statutory  Provisions  relating  to.  —  In  many  of  the 
States  provision  is  now  made  in  the  statute  as  to  what  shall  be 
deemed  the  commencement  of  an  action.      Thus,  in  Maine,  "  the 

1  Beckman  v.  Satterlee,  5  Cow.  (N.  Y.)  519;  Evans  v.  Gallaway,  20  Ind.  479; 
Lowry  v.  Lawrence,  1  Cai.  (N.  Y.)  69;  Kenney  v.  Lee,  10  Tex.  155;  Hail  v. 
Spencer,  1  R.  I.  17;  Cheetham  v.  Lewis,  3  Johns.  (N.  Y.)  42;  Burdick  v.  Green, 
18  id.  14;  Jackson  v.  Brooks,  14  Wend.  (N.  Y.)  649;  Sharp  v.  McGuire,  19  Cal. 
577;  Pemental  v.  San  Francisco,  21  id.  351;  State  v.  Groome,  10  Iowa,  308. 
See  Clare  v.  Lockard,  122  N  Y.  263,  under  the  New  York  Code.  See  also 
McGhee  v.  Gainesville,  78  Ga.  790;  Hampe  v.  Schaffer,  76  Iowa,  563;  Kno.vlton 
v.  Watertown,  130   (J.  S.  327. 

2Jewett  v.  Greene,  8  Me.  447.  In  some  of  the  States  express  provision 
is  made  for  saving  the  rights  of  parties  where  the  writ  fails  of  proper  service  by 
accident.     See  next  note. 


(a)  From  the  time  when  a  claim  is 
submitted  to  the  jurisdiction  of  a 
court,  the  common  statute  of  limita- 
tions and  the  analogous  bars  and  pre- 
sumptions in  equity  and  at  law  cease 
to  operate  for  all  the  purposes  of  the 
pending  litigation.  Smith  v.  Crater. 
43  N.  J.  Eq.  636;  Forman  v.  Brewer 
(N.  J.  L.J48  Atl.  1012. 

As  to  sureties  on  a  bond  for  costs, 
the  statute  runs  only  from  the  time 
when  the  decree  is  actually  entered; 
and  a  nunc  pro  tunc  entry,  as  of  an 
earlier  date,  has  no  effect  on  the  opera- 
tion of  the  statute  of  limitations.  Borer 
v.  Chapman,  119  U.  S.  587,  602;  Few- 
lass  v.  Keeshan,  88  Fed.  Rep.  573,  576. 

A  cause  of  action  against  an  ab- 
stracter of  titles  for  giving  a  wrong 
certificate  of  title,  though  amounting 
to  an  implied  contract  for  skill  and 
care,  does  not  rest  on  the  contract  it- 
self, but  on  tort  for  negligence;  it  ac- 


crues at  the  date  of  the  delivery,  and 
not  when  the  negligence  is  discovered 
or  consequential  damages  arise.  See 
Lattin  v.  Gillette,  95  Cal.  317;  Yore  v. 
Murphy,  18  Mont.  342;  Russell  v.  Polk 
County  Abstract  Co.,  87  Iowa,  233; 
Provident  Loan  Trust  Co.  v.  Wolcolt, 
>;,  Kan.  App.  473.  See  Shackelford  v. 
Staton,  117  N.  C.  73;  Daniel  v.  Griz- 
zard,  id.  105;  supra,  §  179.  n.  In  gen- 
eral, as  to  contracts,  the  statute  begins 
to  run  when  there  is  a  breach  of  con- 
ttact.  express  or  implied,  though  the 
damages  resulting  from  the  original 
wrong  mainly  develop  later.  Camp- 
bell v.  Culver,  67  N.  Y.  S.  469.  As  to 
the  time  for  bringing  suit  under  the 
conditions  of  insurance  policies,  see 
Rogers  v.  Home  Ins.  Co.,  35  C.  C.  A. 
402,  404,  n;  supra,  §  100  and  notes. 
That  a  motion  in  bankruptcy  may  be 
equivalent  to  an  action  in  this  respect, 
see  Re  Mansell,  66  L.  T.  245. 


686  STATUTES   OF   LIMITATION.  [CHAP.    XXVI. 

time  when  a  writ  is  actually  made  with  an  intention  of  service  " 
is  the  commencement  of  the  suit; '  and  this  is  practically  the  pro- 
vision in  Alabama,  whether  the  writ  is  executed  or  not,  if  it  is  con- 
tinued by  an  alias,  or  recommended  at  the  next  term  of  the  court. 
In  Kentucky,  the  action  is  deemed  to  be  commenced  at  the  date 
of  the  first  summons  or  process  issued  in  good  faith  from  the 
court  or  tribunal  having  jurisdiction  in  the  action.  In  North 
Carolina,  the  action  is  deemed  to  be  commenced  as  to  each 
defendant  when  the  summons  is  issued  against  him.  In  Ohio,  at 
the  date  of  the  summons  which  is  actually  served  on  the  defend- 
ant, and  when  service  by  publication  is  proper,  from  the  date  of 
the  first  publication;  so  also  in  Wyoming.  In  California,  when 
the  complaint  is  filed.  So  in  Arizona,  Utah,  Idaho,  and  prac- 
tically in  New  Mexico.  In  Oregon,  when  the  complaint  is  filed 
and  served  on  one  or  more  of  the  defendants.  In  Wisconsin, 
when  the  summons  is  served  on  one  of  the  defendants.  In 
Nevada,  when  the  complaint  is  filed  in  the  proper  court,  and  a 
summons  issued  and  placed  in  the  hands  of  the  sheriff  of  the 
county  or  other  person  authorized  to  serve  the  same.  In  Tennes- 
see, the  suing  out  of  a  summons,  whether  it  is  executed  or  not, 
if  it  is  continued  by  the  issuance  of  an  alias  process  from  term  to 
term,  or  recommenced  within  one  year  after  the  failure  to  exe- 
cute. In  Florida,  when  the  summons  is  issued  to  the  proper 
officer  or  filed  in  the  proper  office.  In  New  York,  South  Carolina, 
and  Dakota,  when  the  summons  is  served  on  one  or  more  of  the 
defendants.2  In  Connecticut,  the  action  is  deemed  to  be  com- 
menced from  the  date  of  the  service  of  the  writ.3  In  Vermont, 
the  making  of  a  writ,4  or  the  issue  of  a  summons  and  order  of 
notice,  is  the  commencement  of  an  action;5  and  such,  also,  is  the 

1  In  Maine,  it  is  also  provided  that  "  when  a  writ  fails  of  a  sufficient  service 
or  return,  by  unavoidable  accident,  or  default  or  negligence  of  the  officer  to 
whom  it  was  delivered  or  directed,"  etc.,  a  new  action  may  be  commenced 
within  six  months  thereafter.  In  Vermont,  a  similar  provision  exists,  except 
that  one  year  is  given.  In  Connecticut  a  provision  similar  to  that  in  Vermont 
exists.     So  also  in  Massachusetts,  Colorado,  Iowa,  and  some  other  States. 

2  In  New  York,  provision  is  made  for  saving  the  plaintiff's  rights  when  he 
attempts  to  comence  an  action.  And  a  provision  similar  to  that  in  sec.  399 
exists  in  South  Carolina  and  Dakota. 

1  Sandford  v.  Dick,  17  Conn.  213. 
*  Allen  v.  Mann,  1  Chip.  (Vt.)  94. 
6  Blain  v.  Blain,  45  Vt.  538. 


§  29O.]  JUDICIAL    PROCESS.  687 

rule  in  Massachusetts;1  and  the  filling  up  and  dating  of  a  writ 
before  the  statute  has  run  has  been  held  sufficient  to  save  the 
statute.2  In  Pennsylvania,  the  issue  of  a  summons  suspends  the 
statute  if  an  alias  summons  is  issued  within  six  years;3  and  it  is 
not  necessary  to  enter  continuances  to  save  the  bar;4  and  if  the 
proper  persons  are  sued,  the  statute  is  suspended,  notwithstand- 
ing the  firm  name  is  erroneously  given,  and  the  process  is  subse- 
quently amended.5  But  the  issue  of  a  summons  which  is  not 
served  will  not  save  the  statute,  unless  an  alias  is  taken  out  and 
served  within  six  years.6  In  Pennsylvania,  the  practice  is  to 
issue  the  original  writ  before  the  statute  has  run,  and  to  continue 
it  by  an  alias,  plus,  and  plurics,  even  after  the  intervention  of 
more  than  one  term;7  and  as  the  writ  which  commences  the 
action  states  the  ground  thereof,  it  is  sufficient  to  set  it  forth 
without  the  continuances.8  In  South  Carolina,  however,  an  alias 
must  be  issued  within  one  year  from  the  time  the  original  issued, 
and  must  also  be  regularly  delivered  to  the  sheriff,  or  it  does  not 
operate  as  a  continuance  of  the  original  writ.9  In  New  York, 
under  the  old  practice,  the  issuing  of  a  capias  to  any  county 
would  save  the  statute,10  even  though  the  plaintiff  directed  the 
sheriff  to  return  it  non  est;  u  but  it  was  required  to  be  kept  on 
foot  by  continuances,  which  could  be  entered  at  any  time.12  The 
fact  that  the  ad  damnum  is  laid  at  a  different  sum  from  that  in 
the  original  process,  or  that  the  venue  was  laid  in  a  different 
county,  will  not  defeat  its  effect  in  suspending  the  statute,  if  the 
action  is  transitory,  and  it  is  averred  that  both  actions  were  predi- 
cated on  the  same  claim,  nor  even  that  the  actions  are  different 
in  form,  if  both  are  for  the  same  cause.13  If  the  action  is  com- 
menced in  season,   the  statute  is  saved  without  any  reference 

1  Woods  v.  Houghton,  1  Gray  (Mass.)  580. 

'Gardner  v.  Webber,  17  Pick.  (Mass.)  407. 

3McClurg  v.  Fryer,  15  Penn.  St.  293. 

4  Schlosser  v.  Lesher,  1  Dall.  (Penn.)  411. 

6  Nichols  v.  Fox,  2  W.  N.  C.  196. 

6  Currier's  Estate,  28  Penn.  St.  261. 

'  Pennock  v.  Hart,  8  S.  &  R.  (Penn.)  369. 

8  Schlosser  v.  Lesher,  1  Dall.  (Penn.)  411. 

'State  Bank  v.  Baker,  3  McCord  (S.  C.)  281. 

10  Jackson  v.  Brooks,  14  Wend.  (N.  Y.)  649. 

11  Beckman  v.  Satterlee,  5  Cow..  (N.  Y.)  519. 
"  Baskins  v.  Wilson,  6  Cow.  (N.  Y.)  471. 

13  Young  v.  Davis,  30  Ala.  213. 


688  STATUTES   OF   LIMITATION.  [CHAP.   XXVI. 

to  the  question  whether  the  plaintiff  used  any  diligence  in  its 
prosecution.1 

SEC.  291.  Date  of  Writ  not  conclusive.  —  The  date  of  the  writ 
is  not  conclusive,  but  is  a  fact  which  may  be  contested,  and  the 
rule  may  be  said  to  be  that  it  is  not  enough  that  the  writ  bears 
date  before  the  expiration  of  the  statutory  period,  but  both  the 
bona  fides  of  the  plaintiff  in  taking  it  out  and  the  exact  time  may 
be  averred  and  shown,  notwithstanding  the  teste.2  The  date  of 
the  writ  is  only  prima  facie  evidence  of  the  time  of  its  issue; 
and  whenever  the  exact  time  of  its  issue,  even  to  the  hour, 
becomes  necessary,  the  defendant  may,  if  he  can,  show  it,  even 
though  it  contradicts  the  teste  of  the  writ.  "  It  would  be  most 
extraordinary  and  inequitable,"  said  Lord  Mansfield,4  "not  to 
allow  the  presumption,  that  the  plaintiff  commenced  his  process 
seasonably,  to  be  rebutted  by  the  defendant,  by  showing  that  in 
real  truth  the  time  was  run  before  he  took  any  step." 

Sec.  292.  Filing  Claim  before  Commissioners.  Pleading,  Set- 
ofl,  etc.  —  Filing  a  claim  with  the  commissioners  of  a  deceased 
insolvent  estate  has  been  held  equivalent  to  commencing  an 
action.5  And  in  New  York  the  entry  of  an  order  to  refer  a  claim 
against  the  estate  of  a  decedent  is  held  to  be  the  commencement 
of  an  action,  within  the  meaning  of  the  statute.6  The  filing  of  a 
claim  in  set-off  operates  as  a  suspension  of  the  statute  as  to  it,  so 
that,  even  though  the  plaintiff's  action  fails,  and  the  set-off  can- 
not be  enforced  therein,  the  defendant  may,  by  a  suit  brought 
within  a  reasonable  time  thereafter,  preserve  his  rights.7 

SEC.  293.  Mistaken  Remedy,  etc.  —  If  the  plaintiff  mistakes 
his  remedy,  in  the  absence  of  any  statutory  provision,  saving  his 
rights,  and   during  the  pendency  of  the  action  the  statute  runs 

1  King  v.  State  Bank.  13  Ark.  269.     But  see  Clark  v.  Kellar,  3  Bush  (Ky.)  223, 
where  a  different  doctrine  was  held. 
!Comyn's  Digest,  539;  Lester  v.  Jenkins,  8  B.  &  C.   339;  Allen  v.   Portland 
Co.,  8  Me.  207;  Chauncey  v.  Rutter,  3  Neb.  313;   Henderson  v.  Baker,  2 
Burr.  950;   Hanway  v.  Merrey,  1  Vent.  28,  Morris  v.  Pugh,  3  Burr.  1241.- 

r  v.  Webber,  17  Pick.  (Mass.)  407;  Society,  etc.,  v.   Whitcomb,  2  N. 
H.  227;  Johnson  v.  Far  well,  7  Me.  370. 
1  Henderson  v.  Baker,  supra. 
Guild  V.  Hale,  15  Mass.  455. 
'•  Hultslandei  v.  Thompson,  5  Hun  (N.  Y.)  348. 
1  Hunt  ?.  Spaulding,  18   Pick    (Mass.)  521.     See  chapter  on  Set-off. 


§  294.]  JUDICIAL   PROCESS.  689 

upon  his  claim,  his  remedy  is  barred  ; 1  and  the  same  rule  prevails 
where,  from  any  cause,  the  plaintiff  becomes  nonsuit,2  or  the 
action  abates  or  is  dismissed,  or  judgment  therein  is  reversed  or 
set  aside,  the  statute  bars  another  action  brought  for  the  same 
claim,  unless,  as  is  the  case  in  several  of  the  States,  provision  is 
made  to  save  the   remedy.3 

Sec.  294.  Amendment  of  Process.  —  An  amendment  of  the 
process  which  does  not  change  the  remedy  does  not  affect  the 
statutory  suspension ;  but  where  a  party  obtains  leave  to  amend 
his  summons  and  complaint  after  the  statute  has  fully  run,  and 
does  so  by  bringing  in  new  parties  defendant,  the  parties  so 
brought  may  set  up  the  statute  in  bar  of  the  action  as  to  them;* 
and  it  would  seem  that  the  bringing  in  of  such  new  parties  would 
be  so  far  equivalent  to  bringing  a  new  action,5  that  such  new 
defendants  may  rely  upon  the  statute  as  a  defense,6  especially 
where  the  new  complaint  does  not  advert  to  the  former  proceed- 
ings so  as  to  connect  the  former  with  the  latter.7  (a)     Of  course, 

1  Todd's  Appeal,  24  Penn.  St.  429. 

i  Harris  v.  Dennis,  1  S.  &  R.  (Penn.)  236. 

3  Williamson  v.  Wardlaw,  46  Ga.  126;  Memphis,  etc.,  R.  R.  Co.  v.  Orr,  52 
Miss.  541. 

*  Newman  v.  Marvin,  12  Hun  (N.  Y.)  236. 

5McMahon  v.  Allen,  3  Abb.  (N.  Y.)  89.  See  also  Magaw  v.  Clark,  6  Watts 
(Penn.)  528;  Brown  v.  Goolsby,  34  Miss.  437.  In  Bradford  v.  Andrews,  20 
Ohio  St.  208.  it  was  held  that  a  new  defendant  brought  in  was  in  as  of  the  date 
of  the  original  process,  although  the  statute  had  run  in  his  favor  before  he  was 
brought  in. 

8  See  Shaw  v.  Cook,  12   Hun  (N.  Y.)  173. 

7  Sands  v.  Burt,  1  Abb.  L.  J.  124.  Where  new  plaintiffs  were  substituted 
who  claimed  to  be  entitled  to  be  subrogated  to  the  rights  of  the  original  plain- 
tiff, the  court  held  that  by  such  substitution  a  new  action  was  virtually  com- 
menced, and  that  the  statute  was  a  bar  thereto,  although  the  original  action 
was  seasonably  commenced.  Sweet  v.  Jeffries,  67  Mo.  420.  See  Bennington 
■v.  Dinsmore,  2  Gill  (Md.)  348;  Gray  v.  Trapnall,  23  Ark.  510. 

(a)  As  to  amendments  of  the  declara-  N.  W.  616;  Detroit  v.  Hosmer  (Mich.), 
tion  or  complaint,  the  general  rule  is  85  N.  W.  1;  Stockham  Bank  v.  Alter- 
that,  if  such  amendments  do  not  pre-  (Neb.),  id.  300;  Cincinnati,  etc.,  Ry. 
sent  a  new  or  different  cause  of  ac-  Co.  v.  Gray,  101  Fed.  Rep.  623;  Frish- 
tion,  and  the  original  pleading  alleged  muth  v.  Farmers'  Loan  &  T.  Co.,  107 
a  good  cause  of  action,  the  statute  of  id.  169;  Moles  v.  Crozier,  31  Pitts.  L.  J. 
limitations  does  not  bar  the  amend-  (N.  S.)  316;  In  re  Ibert,  62  N.  Y.  S. 
merit.  See  supra,  %  7,  n. ;  Chicago  Citv  1051;  Woodcock  v.  Bostic  (N  C),  38 
Ry.  Co.  v.  Hackendahl,  188  111.  300:  S.  E.  881;  Cicero  &  P.  St.  Ry.  Co.  v. 
Chicago  Gen.  Ry.  Co.  v.  Carroll,  189  Brown,  89  III.  App.  318;  Chicago  North 
111  273;  Belden  v.  Barker  (Mich.),  S3  Shore  Rv.  Co.  v.  Payne,  94  id.  466; 
[stats,  of  lim.  —  44] 


690 


STATUTES   OF    LIMITATION. 


[chap.  XXVI. 


an  amendment  of  a  complaint  or  declaration  so  as  to  present  a 
new  cause  of  action  which  was  barred  at  the  time  of  the  amend- 
ment, but  which  was  not  barred  when  the  action  was  brought, 
will  not  defeat  the  operation  of  the  statute  as  to  such  new  matter, 
because  as  to  it  the  statute  was  not  suspended  until  the  amend- 
ment was  made.1  But  as  to  all  amendments  of  the  complaint 
which  do  not  change  the  remedy  or  the  original  ground  of  action 
as  stated  therein,  they  are  treated  as  relating  back  to  the  time  of 
the  commencement  of  the  action.2 


Sec.  295.  Must  be  Action  at  Law.  —  The  commencement  of  a 
bill  in  chancery  does  not  suspend  the  statute,  and  if  pending  such 
bill  the  statute  runs  upon  the  claim,  it  is  barred  so  that  an  action 
at  law  cannot  be  maintained  thereon,  although  the  bill  is  dis- 
missed, even  where  the  statute  makes  provision  for  the  bringing 
of  a  fresh  action,  when  the  original  action  was  brought  in  season, 
and  was  abated  or  dismissed,  etc.3  An  action  in  the  nature  of  a 
creditor's  bill  to  recover  property  of  a  judgment  debtor,  and  to 

1  Lagow  v.  Neilson,  10  Ind.  183. 

5  Agee  v.  Williams,  30  Ala.  636.     See  Wing  v.  De  la  Rionda,  125  N.  Y.  678. 

3  Roland  v.  Logan,  18  Ala.  307;  Gray  v.  Berryman,  4  Munf.  (Va.)  181. 


Elgin  v.  Anderson,  id.  527;  Keni  v. 
Saii  Francisco  Savings  Union,  130  Cal. 
401;  Alabama  Gt.  Southern  R.  Co.  v. 
Thomas,  89  Ala.  294;  Chambers  v. 
Talladega  Real-Estate  Assoc.  (Ala.), 
28  So.  636;  Galveston,  etc.,  Ry.  Co.  v. 
English  (Tex.  Civ.  App.).  59  S.  W.  626; 
Beaty  v.  Atlantic  &  W.  P.  R.  Co.,  100 
Ga.  123;  Service  v.  Farmington  Sav. 
Bank  (Kansas),  62  I'ac.  670;  Flanders 
v.  Cobb  (88  Maine,  488),  51  Am.  St. 
Rep.  410,  431,  n.;  57  Albany  L.  J.  App., 
p.  16.  As  to  the  effect  of  amendments 
in  actions  for  conversion,  see  supra, 
§  183,  n.  (a). 

In  some  States,  as,  e.  g.,  in  Ohio  and 
West  Virginia,  it  is  provided  by  statute 
that  an  attempt  to  commence  an  action 
shall  be  deemed  equivalent  to  the  com- 
mencement  thereof,  enabling  a  plaintiff 
who  becomes  nonsuit  to  bring  a  new 
action  within  a  specified  time,  as  one 
year,  without  becoming  amenable  to 
the  statute  of  limitations.  See  Pitts- 
burg, C.  C.  &  St.  L.  Ry.  Co.  v.  Bemis 
(Oh'o),  r',  N'.  E.  745;  Wiggins  Ferry 
Co.*  Gardner,  9]  [11.  App.  20;  Hamil- 
ton v.  Royal  In>.  Co. ,  156  N.  Y.  327; 
Go  52   N.    V.    S.    221; 


Hooper  v.  Atlanta,  K.  &  N.  Ry.  Co. 
(Tenn.),  60  S.  W.  607;  Manuel  v.  Nor- 
folk &  W.  Ry.  Co.  (Va.),  37  S.  E.  957; 
Ketterman  v.  Dry  Fork  R.  Co.  (W.  Va.), 
id.  683;  Smith  v.  Herd  (Ky.),  60  S.  W. 
841,  1121;  Irwin  v.  Lloyd,  20  Ohio  Cir. 
Ct.  339.  The  Iowa  statute  (§  2537), 
allows  this  when,  after  commencing  an 
action,  "  the  plaintiff  for  any  cause,  ex- 
cept negligence  in  its  prosecution,  fails 
therein."  This  exception  of  negligence 
has  been  held  to  apply  where  a  plaintiff, 
having  ground  for  a  continuance,  did 
not  apply  therefor,  but  voluntarily  dis- 
missed the  action.  Pardey  v.  Me- 
chanicsville  (Iowa),  83  N.  W.  828. 
And  see  Boyce  v.  Snow,  187  111.  181. 

If  when  actions  at  law  were  origi- 
nally brought  the  cause  of  action  sued 
on  was  not  barred  by  limitation,  but 
was  barred  when  a  motion  to  consoli- 
date the  actions  and  to  convert  them 
into  a  bill  in  equity  was  made,  the 
plaintiff's  claim  against  the  defendants 
in  the  original  actions  at  law  is  not 
barred,  but  as  against  those  defend- 
ants, who  were  first  made  parties  by 
the  tiling  of  the  bill  in  equity,  it  is 
barred.     Smith  v.  Butler,  176  Mass.  38. 


§  2g6.]  JUDICIAL    PROCESS.  69I 

have  the  same  applied  in  payment  of  the  judgment,  does  not 
operate  to  extend  the  lien  beyond  the  statutory  period.  Such 
an  action  is  not,  in  any  proper  sense,  an  action  brought  upon  the 
judgment  as  a  cause  of  action,  in  order  to  obtain  a  new  judg- 
ment, but  simply  an  action  ancillary  to  and  for  the  purpose  of 
obtaining  satisfaction  of  an  existing  judgment.  It  has  been 
repeatedly  held  that  a  pending  levy  of  an  execution  made  during 
the  life  of  a  judgment  will  not  operate  to  continue  the  life  or  lien 
of  a  judgment  beyond  the  statutory  period;  that  a  judgment 
creditor  must  sell  the  property  levied  on  within  the  statutory 
period  of  the  life  of  the  lien  of  the  judgment;  that  a  levy  during 
that  period  neither  creates  a  new  lien  nor  extends  the  judgment 
lien;  that  nothing  but  a  renewal  within  the  life  of  the  judgment 
will  continue  the  lien  of  the  judgment;  that  if  an  execution  is 
issued  at  so  late  a  day  that  a  sale  cannot  be  made  within  the  life 
of  the  judgment,  it  should  be  accompanied  by  a  scire  facias  or 
renewal.1  (a) 

Sec.  296.  Abatement  of  Writ,  Dismissal  of  Action,  Reversal  of 
Judgment,  &c.  —  Except  where  the  the  statute  expressly  makes 
a  saving  of  the  rights  of  a  plaintiff,  on  the  failure  of  the  original 
suit,  for  any  cause,  whether  by  reason  of  the  plaintiff  becoming 
nonsuit,  the  abatement  or  dismissal  of  the  action,  or  the  reversal 
of  the  judgment,  a  new  action  cannot  be  brought  for  the  same 
cause  against  which  the  statute  will  not  be  a  bar.2     In  many  of 

1  Tenney  v.  Hemenway,  53  111.  97;  Gridley  v.  Watson,  id.  186;  Isaac  v. 
Swift,  10  Cal.  71 ;  Bagley  v.  Ward  37  id.  121;  Rogers  v.  Druffel,  46  id.  654; 
Dickinson  v.  Collins,  1  Swan,  516;  Davis  v.  Ehrman,  20  Penn.  St.  256;  Rupert 
v.  Dantzer,  12  S.  &  M.  697;  Bierne  v.  Mower,  13  id.  427;  Graff  v.  Kip,  1  Ed.  Ch. 
619;  Tufts  v.  Tufts,  18  Wend.  621;  Little  v.  Harvey,  9  id.  157;  Roe  v.  Swart,  5 
Cow.  294;  Newell  v.  Dart,  54  Md.  384. 

'  Denniston  :.  Rist,  9  La.  Ann.  464;  Walker  v.  Peay,  22  Ark.  103;  Mahon  v. 
The  Justices,  Ga.  Dec.  201;  Gray  v.  Trapnall,  23  Ark.  510;  Robinson  v.  Robin- 
son, 5  Harr.  (Del.)  8.  An  action  voluntarily  abandoned  cannot  be  made  avail- 
able to  save  a  subsequent  suit  for  the  same  cause,  from  the  operation  of  the 
statute.  Ex  parte  Hanks,  1  Cheves  (S.  C.)  Eq.  209;  Null  v.  White  Water  Valley 
Canal  Co.,  4  Ind.  431.  It  is  no  bar  to  the  statute  that  the  plaintiff  commenced 
an  action  seasonably,  which  failed  for  informality.  Callis  v.  Waddy,  2  Munf. 
(Va.)  511.  In  Vermont,  where  the  statute  saves  the  rights  of  a  plaintiff  when 
his  action  fails  for  any  matter  of  form,  for  one  year  thereafter,  it  was  held  that 
this  did  not  extend  to  a  case  where  the  first  suit  was  terminated  by  a  nonusit 

(a)  As  to  the  effect  of  renewing  writs  Hewett  v.  Barr.  [1891]  1  Q.  B.  98; 
under  the  present  English  practice,  see     Magee  v.  Hastings,  2S  L.  R.  Ir.  288, 


692  STATUTES   OF   LIMITATION.  [CHAP.   XXVI. 

the  States,  the  statute  provides  that  when  a  writ  fails  of  a  suffi- 
cient service  or  return  by  unavoidable  accident,  or  default,  or 
negligence  of  the  officer  to  whom  it  was  delivered  or  directed,  or 
is  abated,  or  the  action  otherwise  defeated  for  any  matter  of  form, 
or  by  the  death  of  either  party,  or  if  a  judgment  for  the  plain- 
tiff is  reversed  on  a  writ  of  error,  the  plaintiff  may  commence  a 
new  action  on  the  same  demand  within  six  months  after  the 
abatement  or  determination  of  the  original  suit,  or  reversal  of 
the  judgment;  and  if  he  dies,  and  the  cause  of  action  survives, 
his  executor  or  administrator  may  commence  such  new  action 
within  said  six  months.  Under  such  statutes,  the  rights  of  a 
party  are  saved  where  his  original  action  is  defeated  for  any  of 
the  reasons  stated,  or  within  the  spirit  of  the  saving  clause,  as  a 
nonsuit,1  or  a  failure  of  the  action  by  reason  of  the  absence  of  the 
justice  before  whom  it  was  brought.2  So,  where  the  summons 
is  set  aside  for  defective  service,3  or  is  dismissed  by  reason  of  an 
accidental  omission  of  the  clerk  to  enter  it  seasonably  on  the 
docket.4  But  a  voluntary  dismissal  of  the  action  does  not  save 
the  remedy,5  nor  indeed,  in  any  case  where  there  was  a  voluntary 
abandonment  of  the  action,  can  it  be  relied  upon  to  check  the 
operation  of  the  statute.6 

occasioned  by  ihe  inability  of  the  plaintiff,  through  poverty,  to  comply  season- 
ably with  an  order,  made  by  the  court,  lhat  he  furnish  additional  security  by 
way  of  recognizance  for  the  defendant's  costs.     Hayes  v.  Stewart,  23  Vl.  622. 

1  Freshwater  v.  Baker,  7  Jones  (N.  C.)  L.  225;  Spear  v.  Newell,  13  Vt.  288; 
Skillington  v.  Allison,  2  Hawks  (N.  C.)  347. 

2  Where  a  plaintiff  brought  a  suit  before  a  justice  of  ihe  peace  who  once  con- 
tinued the  cause,  bul  at  the  second  time  appointed  he  was  absent,  whereby  the 
plaintiff  was  necessarily  driven  to  a  nonsuit,  it  was  held  that,  under  a  similar 
siatute,  he  might  bring  a  new  action  within  the  time  named  therein,  and  the 
statute  would  not  be  a  bar  thereto  unless  it  had  run  before  the  commencement 
of  the  first  suit.     Phelps  v.  Wood,  9  Vt.  399;  Spear  v.  Curtis,  40  Vt.  59. 

'■'■  Meisse  v.  McCoy,  17  Ohio  St.  225.     See  Bullock  v.  Dean,  12  Met.  (Mass.)  15. 

*  Allen  v.  Sawtelle,  7  Gray  (Mass.)  165. 

'  Walker  v.  Peay,  22  Ark.  103. 

6  Null  v.  White  Water  Valley  Canal  Co.,  4  Ind.  431. 


APPENDIX. 


THE 


AMERICAN     AND     ENGLISH 

STATUTES  OF    LIMITATIONS. 


Space  permits  only  the  most  important  of  these  statutes  being  here  printed,  but  the  provisions 
here  given  are  in  their  exact  language,  and  all  amendments  are  included  down  to  date.  The 
following  topics  are  covered  in  the  text  and  notes  of  this  book:  Absence,  §§  237,  244,  245; 
Acknowledgments,  §  83;  Accounts,  §§  277-280;  Adverse  Use  and  Right  of  Entry,  §§  254-256; 
Assumpsit,  §§  19,  23,  24;  Co-contractors,  §  285;  Commencement  of  Action,  §  290:  Decendents' 
Estates,  §  196;  Disabilities,  §  237;  Dower,  §  273;  Effect  of  Foreign  Statutes,  §  8;  Fraudulent 
Concealment,  §§274-276;  Injunction,  §  243;  Mortgages,  §  223;  Set-off,  §  284;  Simple  Contracts, 
§§  21,  23;  Specialties,  §§  21,  30-32,  37,  172. 


UNITED    STATES. 

UNITED  STATES  REVISED  STATUTES. 

Crimes.  —  For  treason  or  other  capital  offence,  wilful  murder  excepted,  three 
years  [§  1043].  Eor  offences  not  capital,  except  as  provided  in  §  1046,  three 
years  [§  1044.  as  amended  by  the  Act  of  April  13,  1876,  chap.  56,  19  Statutes 
at  Large,  p.  32].  For  crimes  under  the  revenue  laws,  five  years  [§  1046] 
Suits  or  prosecutions  for  penalties  and  forfeitures  under  the  laws  of  the  United 
States,  five  years  [§  1047]. 

In  civil  prosecutions  the  Federal  Courts  follow  the  local  State  statutes  of 
limitations.  See  supra,  §  40a,  n,  (a),  note  (a).  As  to  limitation  in  suits  for  the 
infringment  of  patents,  see  supra,  %  40a,  n,  (a). 


ALABAMA. 

CIVIL  CODE  (1896),  Chap.  72,  Art.  i. 

Sec.  2794.  Actions  within  Twenty  Years.  —  1.   Actions  at  the  suit  of  the  State 
against  a  citizen  thereof,  for  the  recovery'  of  real  or  personal  property. 

2.  Actions  by  or  for  the  use  of  any  township,  for  the  recovery  of  sixteenth 
section  or  other  school  lands  belonging  to  the  township. 

3.  Actions  upon  a  judgment  or  decree  of  any  court  of  the  State,  of  the  United 
States,  or  of  any  State  or  Territory  of  the  United  States. 

[695] 


696  STATUTES   OK    LIMITATION. 

Sec.  2795.  Actions  to  be  brought  within  Ten  Years. —  1.  Actions  founded 
-upon  any  contract  or  writing  under  seal. 

2.  Actions  for  the  recovery  of  lands,  tenements,  or  hereditaments,  or  the 
possession  thereof,  except  as  herein  otherwise  provided. 

3.  Motions  and  other  actions  against  sheriffs,  coroners,  constables,  and  other 
public  officers,  for  nonfeasance,  misfeasance,  or  malfeasance  in  office. 

Sec.  2796.  Six  Years.  —  1.  Actions  for  any  trespass  to  person  or  liberty,  such 
as  false  imprisonment  or  assault  and  battery. 

2.  Actions  for  any  trespass  to  real  or  personal  property. 

3.  Actions  for  the  detention  or  conversion  of  personal  property. 

4.  Actions  founded  on  a  promise  in  writing  not  under  seal. 

5.  Actions  for  the  recovery  of  money  upon  a  loan,  upon  a  stated  or  liquidated 
account,  or  for  arrears  of  rent  due  upon  a  parol  demise. 

6.  Actions  for  the  use  and  occupation  of  land. 

7.  Motions,  and  other  actions  against  the  sureties  of  any  sheriff,  coroner, 
constable  or  any  public  officer,  or  actions  against  the  sureties  of  executors, 
administrators,  or  guardians,  for  any  misfeasance  or  malfeasance  whatever  of 
their  principal,  the  time  to  be  computed  from  the  act  done  or  omitted  by  their 
principal,  which  fixes  the  liability  of  the  surety. 

8.  Motions  and  other  actions  against  attorneys  at  law,  for  failure  to  pay  over 
money  of  their  clients,  or  for  neglect  or  omission  of  duty. 

9.  Actions  founded  upon  judgments  obtained  before  justices  of  the  peace  of 
this  State;  actions  upon  any  simple  contract  or  specialty,  not  herein  specifically 
enumerated. 

Sec.  2797.  Five  Years.  —  1.  All  actions  founded  on  equities  of  redemption, 
where  lands  have  been  sold  under  a  decree  of  the  court  of  chancery,  existing 
in  any  person  not  a  party  to  the  proceedings,  who  claims  under  the  mortgagor 
or  grantor  in  the  deed  of  trust. 

2.  (Sec.  3171)  bills  in  equity  to  annual  probate  partitions. 

Sec.  2798.  Four  Years.  —  1.  All  actions  or  motions  against  any  surety  to  any 
writ  of  error,  appeal,  replevy,  or  forthcoming  bond,  executed  in  any  cause  in 
any  of  the  courts  of  the  United  States,  or  of  any  other  State  or  country  except 
the  State  of  Alabama. 

Sec.  2799.  Three  Years.  —  1.  Actions  to  recover  money  due  by  open  or 
unliquidated  account,  the  time  to  be  computed  from  the  date  of  the  last  item  of 
the  account,  or  from  the  time  when,  by  contract  or  usage,  the  account  is  due. 

Sec.  2800.  Actions  by  representatives  to  recover  damages  for  wrongful  act, 
omission  or  negligence  causing  death  of  the  decedent,  under  section  27  (2589). 

Sec.  2801.   One  Year.  —  1.   Actions  for  malicious  prosecutions. 

2.  Actions  for  criminal  conversation,  for  seduction,  or  breach  of  marriage 
promise. 

3.  Actions  qui  tarn,  or  for  a  penalty  given  by  statute  to  the  party  aggrieved, 
unless  the  statute   imposing  it  prescribes  a  different  limitation. 

4.  Actions  of  libel  or  slander. 

5.  Actions  for  damages  for  wrongful  act  or  omission,  causing  personal  injury 
to,  or  death  of  ;i  minor,  under  section  26(2588);  actions  for  any  injury  to  the 

>n  or  rights  of  another,  not  arising  from  contract,  and  not  herein  specifically 
enumerat 

My  s'-c  lion  674,  the  above  provisions  apply  to  suits  in  chancery.  As  to  disa- 
bilities, sc  e<  tion  237. 


ALASKA  —  ARIZONA    TERRITORY.  697 


ALASKA. 

CODE  OF  CIVIL    PROCEDURE,   g§  3-13;    CARTER'S  ANNOTATED 
ALASKA  CODES  (1900),  p.   146. 

Sec.  4.  Actions  to  be  brought  'within  Ten  Years.  —  1.  Actions  for  the  recovery 
or  possession  of  real  property. 

2.  Sec.  5.  (1)  Upon  a  judgment  or  decree  of  any  court  of  the  United  States,  or 
of  any  State  or  Territory;  or,  (2),  upon  a  sealed  instrument. 

Sec.  6.  Six  Years.  —  1.  An  action  upon  a  contract  or  liability,  express  or 
implied,  excepting  those  mentioned  in  section  five. 

2.  An  action  upon  a  liability  created  by  statute,  other  than  a  penalty  or 
forfeiture. 

3.  An  action  for  waste  or  trespass  upon  real  property. 

4.  An  action  for  taking,  detaining,  or  injuring  personal  property,  including 
an  action  for  the  specific  recovery  thereof. 

Sec.  7.  Three  Years.  —  1.  An  action  against  a  marshal,  coroner,  or  constable, 
upon  a  liability  incurred  by  the  doing  of  an  act  in  his  official  capacity  or  in 
virtue  of  his  office;  or  by  the  omission  of  an  official  duty,  including  the  non-pay- 
ment of  money  collected  upon  an  execution,  but  not  including  an  action  for  an 
escape. 

2.  An  action  upon  a  statute  for  penalty  or  forfeiture,  where  the  action  is 
given  to  the  party  aggrieved,  or  to  such  person  and  the  United  States,  except 
where  the  statute  imposing  it  prescribes  a  different  limitation. 

Sec.  8.  Two  Years.  —  1.  An  action  for  libel,  slander,  assault,  battery,  seduc- 
lion,  false  imprisonment,  or  for  any  injury  to  the  person  or  rights  of  another 
not  arising  on  contract,  and  not  herein  especially  enumerated. 

2.   An  action  upon  a  statute  for  a  forfeiture  or  penalty  to  the  United  States. 

Sec.  9.  One  Year.  —  An  action  against  the  marshal  or  other  officer  for  the 
escape  of  a  person  arrested  or  imprisoned  on  civil  process. 

Sec.  10.  Actions  for  penalties.  — Actions  for  penalties  given  to  private  indi. 
viduals  for  prosecuting  an  offense,  one  year  after  its  commission;  or  two  years, 
if  not  so  prosecuted,  but  prosecuted  by  the  district  attorney  in  behalf  of  the 
United  States. 

Sec.  n.  Other  actions.  — Actions  for  any  cause  not  here  provided  for,  must 
be  commenced  within  ten  years. 


ARIZONA  TERRITORY. 

REVISED  STATUTES  1887,  Title  XLIV. 
Chap.  I.  —  Limitation  of  Actions  of  Land. 

(2297.)  Sec.  1.  Suit  against  Possessor  under  Color  of  Title,  Three  Years.  — 
To  recover  real  property  as  against  any  person  in  peaceable  and  adverse  pos- 
session thereof  under  title  or  color  of  title,  three  years. 

(2298.)  Sec.  2.  "Title"  defined. 

(2299.)  Sec.  3.  Suit  against  Possessor  under  Deed ;  Forged  Deed,  Five 
Years.  —  To  recover  real  property  as  against  any  person  having  peaceable  and 


698  STATUTES   OF   LIMITATION. 

adverse  possession  thereof,  cultivating,  using,  or  enjoying  the  same,  and  pay- 
ing taxes  thereon,  if  any,  and  claiming  under  a  deed  or  deeds  duly  registered, 
shall  be  instituted  within  rive  years  next  after  the  cause  of  action  shall  have 
accrued,  and  not  after  ,vards:  provided  that  this  section  chall  not  apply  to  any 
one  in  possession  of  land,  who  in  the  absence  of  this  section  would  deraign 
title  through  a  forged  deed:  provided,  further,  that  no  one  claiming  under  a 
forged  deed,  or  a  deed  executed  under  a  forged  power  of  attorney,  shall  be 
allowed  the  benefits  of  this  section. 

(2300.)  Sec.  4.  Restriction  to  160  acres.  —  The  peaceable  and  adverse  posses- 
sion contemplated  in  the  preceding  section  as  against  the  person  having  right 
of  action  shall  be  construed  to  embrace  not  more  than  one  hundred  and  sixty 
acres,  including  the  improvements  or  the  number  of  acres  actually  enclosed, 
should  the  same  be  less  than  one  hundred  and  sixty  acres,  but  when  such  pos- 
session is  taken  under  some  written  memorandum  of  title,  other  than  a  deed, 
which  fixes  the  boundaries  of  the  possessor's  claim  and  is  duly  registered,  such 
peaceable  possession  shall  be  construed  lo  be  co-extensive  with  the  boundaries 
specified  in  such  instrument. 

(2301.)  Sec.  5.  Against  Claimant  by  Right  of  Possession,  Two  Years.  —  In 
all  cases  where  the  party  in  possession  claims  real  property  by  right  of  posses- 
sion, only  suits  to  recover  the  possession  from  him  shall  be  brought  in  two  years 
after  the  right  of  action  accrues  and  not  afterwards,  and  in  such  case  the  defend- 
ant is  not  required  to  show  title  or  color  of  title  from  and  under  the  sovereignty 
of  the  soil  as  provided  in  the  preceding  section  as  against  the  plaintiff  who 
shows  no  better  right. 

Chap.  2.     Limitation  op  Personal  Actions. 

(2309.)  Sec.  13.  One  Tear.  —  All  actions  or  suits  in  court,  of  the  following 
description:  — 

1.  Actions  for  injuries  done  to  the  person  of  another. 

2.  Actions  for  malicious  prosecution,  or  for  false  imprisonment,  or  for  injuries 
done  to  the  character  or  reputation  of  another  by  libel  or  slander. 

3.  Actions  for  damages  for  seduction  or  beach  of  promise  of  marriage. 

4.  Actions  for  injuries  done  to  the  person  of  another  where  death  ensued  from 
such  injuries;  and  the  cause  of  action  shall  be  considered  as  having  accrued 
at  the  death  of  the  party  injured. 

(2310.)  Sec.  14.  Two  Years.  — All  actions  or  suits  in  court,  of  the  following 
description:  — 

1.  Actions  of  trespass  for  injury  done  to  the  estate  or  the  property  of  another. 

2.  Actions  for  detaining  the  personal  property  of  another  and  for  converting 
such  personal  property  to  one's  own  use. 

3.  Actions  tor  taking  or  carrying  away  the  goods  and  chattels  of  another. 

4.  Actions  upon  a  judgment  or  decree  of  any  court  rendered  without  (his 
Territory  or  upon  an  instrument  in  writing  executed  without  this  Territory,  the 

to  be  computed  from  the  arrival  of  the  party  pleading  the  statute  in  the 
Territory. 

(23 1 1.)  Sec.  15.  Three  Years. — All  actions  or  suits  in  courts,  of  the  following 
(1  sscription:  — 

i.  Actions  for  debt  where  the  indebtedness  is  not  evidenced  by  a  contract  in 
writing. 


ARKANSAS.  699 

2.  Actions  upon  stated  or  open  accounts  other  than  such  mutual  and  current 
accounts  as  concern  the  trade  of  merchandise  between  merchant  and  merchant, 
their  factors  or  agents. 

(2312.)  Sec.  16.  Accounts  not  of  Merchants,  &c,  from  Date  of  Delivery.  — 
In  all  accounts  except  those  between  merchant  and  merchant,  as  aforesaid, 
their  factors  and  agents,  the  respective  times  or  dates  of  the  delivery  of  the 
several  articles  charged  shall  after  demand  made  in  writing  be  particularly 
specified,  and  limitation  shall  run  against  each  item  from  the  date  of  such 
delivery,  unless  otherwise  specifically  contracted. 

(2313.)  Sec.  17.  Four  Years.  —  All  actions  or  suits  in  court,  of  the  following 
description:  — 

1.  Actions  for  the  penalty  or  for  damages  on  the  penal  clause  of  a  bond  to 
convey  real  estate. 

2.  Actions  by  one  partner  against  his  copartner  for  a  settlement  of  the  part- 
nership accounts;  or  upon  mutual  and  current  accounts  concerning  the  trade  of 
merchandise  between  merchant  and  merchant,  their  factors  or  agents,  and  the 
cause  of  action  shall  be  considered  as  having  accrued  on  a  cessation  of  the  deal- 
ings in  which  they  were  interested  together. 

(2314.)  Sec.  18.  Five  Years. — Actions  for  debt  where  the  indebtedness  is 
evidenced  by  or  founded  upon  any  contract  in  writing,  executed  within  this 
Territory,  shall  be  commenced  and  prosecuted  within  five  years  after  the  cause 
of  action  shall  have  accrued  and  not  afterward. 

(2315.)  Sec.  ig.  Suit  on  Bond  of  Executor,  or  Guardian,  Four  Years.  —  All 
suits  on  the  bond  of  any  executor,  administrator,  or  guardian,  shall  be  com- 
menced and  prosecuted  within  four  years  next  after  the  death,  resignation, 
removal,  or  discharge  of  such  executor,  administrator,  or  guardian  and  not 
thereafter. 

(2316.)  Sec.  20.  Other  Personal  Actions,  Four  Years.  —  Every  action  other 
than  for  the  recovery  of  real  estate,  for  which  no  limitation  is  otherwise  pre- 
scribed, shall  be  brought  within  four  years  next  after  the  right  to  bring  the 
same  shall  have  accrued,  and  not  afterward. 

(2317.)  Sec.  21.  Actions  on  foreign  Judgments.  —  Every  action  upon  a  judg- 
ment or  decree  rendered  in  any  other  State  or  Territory  of  the  United  States, 
in  the  District  of  Columbia,  or  in  any  foreign  country,  shall  be  barred,  if  by 
the  laws  of  such  State  or  country  such  action  would  there  be  barred,  and  the 
judgment  or  decree  be  incapable  of  being  otherwise  enforced. 

(2313.)  Sec.  22.  Action  for  Specific  Performance,  Four  Years. 

(2319.)  Sec.  23.  Revivor,  Five  Years. 

(2321.)  Sec.  25.  Forcible  Entry  or  Forcible  Detainer,  Two  Years. 

(2322.)  Sec.  26.  Contest  of  Will,  Four  Years. 


ARKANSAS.    ' 

SANDELLS  &  HILL'S  DIGEST  (1894),  Chap.   100. 

Sec.  4815.  For  the  recovery  of  lands,  tenements  or  hereditaments,  seven  years; 
as  to  disabilities,  see  supra,  §  237,  and  n.  (a). 

Sec.  481s.   For  the  recovery  of  lands  sold  at  judicial  sales,  five  years. 

Sec.  4822.  Actions  to   be   commenced  in  Three   Years.  —  First,   All  actions 


yOO  STATUTES    OF    LIMITATION. 

founded  upon  any  contract  or  liability,  express  or  implied,  not  in  writing. 
Second,  All  actions  for  trespass  on  lands,  or  for  libels.  Third,  All  actions  for 
taking  or  injuring  any  goods  or  chattels. 

Sec.  4823.  Within  One  Year.  —  First,  All  actions  for  criminal  conversation, 
assault  and  battery,  and  false  imprisonment.  Second,  All  actions  for  words 
spoken,  slandering  the  character  of  another.  Third,  All  words  spoken, 
whereby  special  damages  are  sustained. 

Sec.  4824.  For  Escape.  —  All  actions  against  sheriffs  or  other  officers,  for  the 
escape  of  any  person  imprisoned  on  civil  process  within  one  year. 

Sec.  4825.  Sheriffs  and  Coroners.  —  All  actions  against  sheriffs  and  coroners, 
for  other  official  misconduct,  two  years. 

Sec.  4826.  Penal  Statutes.  —  All  actions  upon  penal  statutes  where  the 
penalty  or  any  part  thereof  goes  to  the  State  or  any  county  or  person  suing  for 
the  same,  two  years . 

Sec.  4S27.  Instruments  in  Writing.  —  Actions  on  promissory  notes,  and  other 
instruments  in  writing,  five  years.  — Act  Dec.  14,  1844. 

Sec.  4828.  Writings  under  Seal. — Actions  on  writings  under  seal,  Jive  years. 

Sec.  4829.  Official  Bonds.  —  Actions  on  the  official  bonds  of  sheriffs,  coro- 
ners, and  constables,  four  years.  — Act  Dec.  14,  1844,  and  Rev.  St.  c.  26,  §  14. 

Sec.  4830.  Executors'  Bonds.  —  Actions  on  the  bonds  of  executors  and 
administrators,  eight  years. — Act  Dec.  14,  1844. 

Sec.  4831.  Judgments.  —  Actions  on  all  judgments  and  decrees,  ten  years. 

[By  the  later  Act  of  April  19,  1895,  chap.  135,  claims  against  counties,  three 
years.] 

Sec.  4832.  General  Provision.  —  All  other  actions,  five  years. 


CALIFORNIA. 

CODE  OF  CIVIL  PROCEDURE.     1885. 

Part  II.,  Title  II.,  Chap.  I. 

Sec.  312.  Time  of  Commencement  of  Actions  in  General.  —  Civil  actions  can 
only  be  commenced  within  the  periods  prescribed  in  this  title,  after  the  cause 
of  action  shall  have  accrued,  except  where,  in  special  cases,  a  different  limita- 
tion is  prescribed  by  statute. 

Chap.  II.     As  to  Real  Property. 

Sec.  318.  Seisin  within  Five  Years,  when  necessary.  —  No  action  for  the 
recovery  of  real  property,  or  for  the  recovery  of  the  possession  thereof,  can  be 
maintained,  unless  it  shall  appear  that  the  plaintiff,  his  ancestor,  predecessor, 
or  grantor,  was  seised  or  possessed  of  the  property  in  question  within  five 
years  before  the  commencement  of  the  action. 

Sec  320.  Entry  on  Real  Estate.  —  No  entry  upon  real  estate  is  deemed  suffi- 
cient or  valid  as  a  claim,  unless  an  action  be  commenced  thereupon  within  one 
year  after  making  such  entry,  and  within  five  years  from  the  time  when  the 
right  to  make  it  descended  or  accrued. 

S  '  .  322.  Occupation  under  Written  Instrument  or  Judgment,  when  deemed 
adverse.  —  Whenever  it  appears  that   tin-  occupant,  or  those  under  whom  he 


CALIFORNIA.  701 

claims,  entered  into  the  possession  of  the  property  under  claim  of  title,  exclu- 
sive of  any  other  right,  founding  such  claim  upon  a  written  instrument,  as 
being  a  conveyance  of  the  property  in  question,  or  upon  the  decree  or  judgment 
of  a  competent  court,  and  that  there  has  been  a  continued  occupation  and  pos- 
session of  the  property  included  in  such  instrument,  decree,  or  judgment,  or  of 
some  part  of  the  property  under  such  claim,  for  five  years,  the  property  so 
included  is  deemed  to  have  been  held  adversely,  except  that,  when  it  consists 
of  a  tract  divided  into  lots,  the  possession  of  one  lot  is  not  deemed  a  possession 
of  any  other  lot  of  the  same  tract. 

Sec.  323.  What  constitutes  Adverse  Possession  under  Written  Instrument  or 
Judgment.  —  For  the  purpose  of  constituting  an  adverse  possession  by  any  per- 
son claiming  a  title  founded  upon  a  written  instrument,  or  a  judgment  or 
decree,  land  is  deemed  to  have  been  possessed  and  occupied  in  the  following 
cases;  1.  Where  it  has  been  usually  cultivated  and  improved.  2.  Where  it  has 
been  protected  by  a  substantial  enclosure.  3.  Where,  although  not  enclosed, 
it  has  been  used  for  the  supply  of  fuel,  or  of  fencing  timber  for  the  purposes 
of  husbandry,  or  for  pasturage,  or  for  the  ordinary  use  of  the  occupant. 
4.  Where  a  known  farm  or  single  lot  has  been  partly  improved,  the  portion  of 
such  farm  or  lot  that  may  have  been  left  not  cleared,  or  not  enclosed  according 
to  the  usual  course  and  custom  of  the  adjoining  country,  shall  be  deemed  to 
have  been  occupied  for  the  same  length  of  time  as  the  part  improved  and 
cultivated. 


Chap.  III.      The  Time  of  commencing   Actions   other,  than   for   the 
Recovery  of  Real  Property. 

Sec.  335.  Periods  of  Limitation  prescribed.  —  The  periods  prescribed  for  the 
commencement  of  actions  other  than  for  the  recovery  of  real  property  are  as 
follows 

Sec.  336.  Within  Five  Years. 

1.  An  action  upon  a  judgment  or  decree  of  any  court  of  the  United  States,  or 
of  any  State  within  the  United  States. 

2.  An  action  for  mesne  profits  of  real  property. 
Sec.  337.  Within  Four  Years. 

An  action  upon  any  contract,  obligation,  or  liability,  founded  upon  an  instru- 
ment in  writing  executed  in  this  State. 
Sec.  338.  Within  Three  Years. 

1.  An  action  upon  a  liability  created  by  statute,  other  than  a  penalty  or 
forfeiture. 

2.  An  action  for  trespass  upon  real  property. 

3.  An  action  for  taking,  detaining,  or  injuring  any  goods  or  chattels,  includ- 
ing actions  for  the  specific  recovery  of  personal  property. 

4.  An  action  for  relief  on  the  ground  of  fraud  or  mistake.  The  cause  of 
action  in  such  case  not  to  be  deemed  to  have  accrued  until  the  discovery,  by 
the  aggrieved  party,  of  the  facts  constituting  the  fraud  or  mistake. 

Sec.  339.  Within  Two  Years. 

1.  An  action  upon  a  contract,  obligation,  or  liability,  not  founded  upon  an 
instrument  in  writing,  or  founded  upon  an  instrument  of  writing  executed  out 
of  the  State. 

2.  An  action  against  a  sheriff,  coroner,  or  constable,  upon  a  liability  incurred 


y02  STATUTES   OF   LIMITATION. 

by  the  doing  of  an  act  in  his  official  capacity,  and  in  virtue  of  hie  office,  or  by 
the  omission  of  an  official  duty,  including  the  non-payment  of  money  collected 
upon  an  execution.   But  this  subdivision  does  not  apply  to  an  action  for  an  escape. 

3.  An  action  to  recover  damages  for  the  death  of  one  caused  by  the  wrongful 
act  or  neglect  of  another. 

Sec.  340.  Within  One  Year. 

1.  An  action  upon  a  statute  for  a  penalty  or  forfeiture,  when  the  action  is 
given  to  an  individual,  or  to  an  individual  and  the  State,  except  when  the 
statute  imposing  it  prescribes  a  different  limitation. 

2.  An  action  upon  a  statute,  or  upon  an  undertaking  in  a  criminal  action,  for 
a  forfeiture  or  penalty  to  the  people  of  this  State. 

3.  An  action  for  libel,  slander,  assault,  battery,  false  imprisonment,  or 
seduction. 

4.  An  action  against  a  sheriff  or  other  officer  for  the  escape  of  a  prisoner 
arrested  or  imprisoned  on  civil  process. 

5.  An  action  against  a  municipal  corporation  for  damages  or  injuries  to  prop- 
erty caused  by  a  mob  or  riot. 

Sec.  341.  Within  Six  Months. 

An  action  against  an  officer,  or  officer  de  facto: 

1.  To  recover  any  goods,  wares,  merchandise,  or  other  property  seized  by 
any  such  officer  in  his  official  capacity  as  tax-collector,  or  to  recover  the  price  or 
value  of  any  goods,  wares,  merchandise,  or  other  personal  property  so  seized, 
or  for  damages  for  the  seizure,  detention,  sale  of  or  injury  to  any  goods, 
wares,  merchandise,  or  other  personal  property  seized,  or  for  damages  done  to 
any  person  or  property  in  making  any  such  seizure. 

2.  To  recover  stock  sold  for  a  delinquent  assessment,  as  provided  in  section 
347  of  the  Civil  Code. 

Sec.  342.  Action  on  Claims  against  Counties.  —  Actions  on  claims  against  a 
county,  which  have  been  rejected  by  the  board  of  supervisors,  within  six 
months  after  the  first  rejection  thereof  by  such  board. 

Sec.  343.  Actions  for  Relief  not  hereinbefore  provided  for.  —  An  action  for 
relief  not  hereinbefore  provided  for,  four  years. 

Sec.  348.  No  Limitation.  —  To  actions  brought  to  recover  money  or  other 
property  deposited  with  any  bank,  banker,  trust  company,  or  savings  and  loan 
society,  there  is  no  limitation. 

The  Act  of  Feb.  28,  1893,  chap.  45,  limits  suits  against  the  State  on  contract 
or  for  negligence  to  two  years,  except  as  to  minors  and  persons  insane  or 
imprisoned. 

COLORADO. 

Statutes,  1891.     Chap.  78. 

Sec.  2900.  Actions  barred  in  Six  Years. 

Fit   1.   All  actions  of  debt  founded  upon  any  contract  or  liability  in  action". 

Second.  —  All  actions  upon  judgments  rendered  in  any  court  not  being  a 
court  of  record. 

Third.   All  actions  for  arrears  of  rent. 

Fourth.  All  actions  of  assumpsit  or  on  the  case,  founded  on  any  contract  or 
liability,  express  or  implied. 

Fifth.   All  actions  for  waste  and  for  trespass  on  land. 


COLORADO.  703 

Sixth.  All  actions  of  replevin,  and  all  other  actions  for  taking,  detaining,  or 
injuring  goods  or  chattels. 

Seventh.  All  other  actions  on  the  case,  except  actions  for  slanderous  words, 
and  for  libels. 

Sec.  2901.  In  One  Year.  —  All  actions  for  assault  and  battery,  and  for  false 
imprisonment,  and  all  actions  for  slanderous  words  and  for  libels. 

Sec.  2902.  For  Escape.  — All  actions  against  sheriffs,  or  other  officers  for  the 
escape  of  persons  imprisoned  on  civil  process,  six  months. 

Sec.  2903.  Against  Sheriffs  and  Coroners.  —  All  actions  against  sheriffs  and 
coroners  for  other  official  misconduct,  one  year. 

Sec.  2904.  Action  en  Open  Account.  —  In  all  actions  of  debt  or  assumpsit, 
brought  to  recover  the  balance  due  upon  a  mutual  and  open  account-current, 
from  the  time  of  the  last  item  proved  in  such  account. 

Sec.  2905.  Actions  barred  in  Three  Years.  —  All  personal  actions,  on  any 
account  not  limited  by  the  foregoing  sections,  or  by  any  other  law  in  this  State. 

Sec.  2906.  Set-off,  how  Limitation  computed  on.  —  All  the  provisions  of  this 
chapter  shall  apply  to  the  case  of  any  debt  or  contract,  alleged,  by  way  of 
set-off,  on  the  part  of  a  defendant;  and  the  time  of  limitation  of  such  debt  shall 
be  computed  in  like  manner  as  if  an  action  had  been  commenced  therefor  at  the 
time  when  the  plaintiff's  action  accrued. 

Sec.  2907.  Actions  for  Penalties  and  Forfeitures.  —  All  actions  and  suits,  for 
any  penalty  or  forfeiture  of  any  penal  statute  brought  by  this  State,  or  any  per- 
son to  whom  the  penalty  or  forfeiture  is  given,  in  whole  or  in  part,  one  year. 

Sec.  290S.  Suits  limited  by  Statute.  —  The  preceding  section  shall  not  apply 
to  any  suit  which  is  or  shall  be  limited  by  any  statute  to  be  brought  within  a 
shorter  time  than  is  prescribed  therein,  but  such  suit  shall  be  brought  within 
the  time  thar  may  be  limited  by  such  statute. 

Sec.  2909.  Limitations  to  apply  to  Court  of  Equity,  when.  —  Whenever 
there  is  a  concurrent  jurisdiction  in  the  courts  of  common  law  and  in  courts  of 
equity,  of  any  cause  of  action,  the  provisions  of  this  chapter  limiting  the  time 
for  the  commencement  of  a  suit  for  such  cause  of  action  in  a  court  of  common 
law  shall  apply  to  all  suits  hereafter  to  be  brought  for  the  same  cause  in  the 
court  of  chancery. 

Sec.  2910.  Not  to  apply  to  Courts  of  Equity,  when.  —  The  last  section  shall 
not  extend  tosuits  over  the  subject-matter  of  which  a  court  of  equity  has  peculiar 
and  exclusive  jurisdiction,  and  which  subject-matter  is  not  cognizable  in  the 
courts  of  common  law. 

Sec.  2911.  Actions  for  Relief  on  Ground  of  Fraud.  — Bills  of  relief  on  the 
ground  of  fraud,  three  years  after  its  discovery. 

Sec.  2912.  Trusts  and  other  Cases.  —  Bills  of  relief,  in  case  of  the  existence 
of  a  trust  not  cognizable  by  the  courts  of  common  law,  and  in  all  other  cases 
not  herein  provided  for,  Jive  years. 

Sec.  2915.  What  Actions  barred  in  Six  Years.— It  shall  be  lawful  for  any 
person,  against  whom  any  action  shall  be  commenced  in  any  court  of  this  State, 
wherein  the  cause  of  action  accrued  without  this  State,  upon  a  contract  or  agree- 
ment expressed  or  implied,  or  upon  any  sealed  instrument  in  writing,  or  upon 
a  judgment  or  decree  rendered  in  any  court  without  this  State,  more  than  six 
years  before  the  commencement  of  the  action  in  this  State,  to  plead  the  same  in 
bar  of  the  action  in  this  Stale,  provided,  etc.,  [as  amended  by  the  Act  of  1899, 
c.  1 13,  which  repealed  the  prior  amendment  made  by  the  Act  of  April  29,  1895.] 


704  STATUTES   OF   LIMITATION. 

Real  Estate. 

Sec.  2923.  Limitation.  Twenty  Years.  —  Repealed  by  St  1893,  p.  327,  by 
§  1  of  which  actions  for  the  recovery  of  land  are  to  be  brought  within  twenty 
years  after  seisin  or  possession,  and  by  §  4  of  which  actions  to  recover  land  by 
the  record  owner,  seven  years  after  pcssession  taken. 

Sec.  2924.  Persons  not  entitled  to  Benefits  of  Act.  —  Whenever  a  person  hav- 
ing color  of  title,  made  in  good  faith,  to  vacant  and  unoccupied  land,  shall  pay 
all  taxes  legally  assessed  thereon  for  seven  successive  years,  he  or  she  shall  be 
deemed  and  adjudged  to  be  the  legal  owner  of  such  vacant  and  unoccupied 
land,  to  the  extent  and  according  to  the  purport  of  his  or  her  paper  title.  All 
persons  holding  under  such  taxpayer,  by  purchase,  devise,  or  descent,  before 
said  seven  years  shall  have  expired,  and  who  shall  continue  to  pay  the  taxes  as 
aforesaid,  so  as  to  complete  the  payment  of  the  taxes  for  the  aforesaid,  shall  be 
entitled  to  the  benefit  of  this  section:  Provided,  however,  that  if  any  person  hav- 
ing a  better  paper  title  to  said  vacant  and  unoccupied  land,  shall,  during  the 
said  term  of  seven  years  pay  the  taxes  assessed  on  said  land,  for  any  one  or 
more  years  during  the  said  term  of  seven  years,  then,  and  in  that  case,  such 
person  seeking  title  under  claim  of  taxes  paid,  his  heirs  and  assigns,  shall  not 
be  entitled  to  the  benefit  of  this  section.  [As  amended  by  §  7  of  the  above  Act 
of  1893.] 

Sec.  2925.  Property  to  which  Provisions  of  Act  shall  not  extend.  —  The  two 
preceding  sections  shall  not  extend  to  lands  or  tenements  owned  by  the  United 
States,  or  of  this  State,  not  to  school  or  seminary  lands,  not  to  land  held  for 
the  use  of  any  religious  societies,  nor  to  lands  held  for  any  public  purpose. 
Nor  shall  they  extend  to  any  lands  or  tenements,  when  there  shall  be  adverse 
title  to  such  lands  or  tenements,  and  the  holder  of  such  adverse  title  is  under 
the  age  of  twenty-one  years,  insane,  imprisoned,  feme  covert,  or  out  of  the 
limits  of  the  United  States,  and  in  the  employment  of  the  United  States  or  of 
this  State:  Provided,  such  person  shall  commence  an  action  to  recover  such 
lands  or  tenements  so  possessed  as  aforesaid,  within  three  years  after  the  disa- 
bilities herein  enumerated  shall  cease  to  exist,  and  shall  prosecute  such  action 
to  judgment,  or  in  case  of  vacant  and  unoccupied  land,  shall  within  the  time 
last  aforesaid,  pay  to  the  person  or  persons  who  have  paid  the  same,  all  the 
taxes,  with  interest  thereon,  at  the  rate  of  iwelve  percent,  per  annum,  that  have 
been  paid  on  said  vacant  and  unoccupied  land. 

Sec  2926.   Repealed  by  §  11  of  the  above  Act  of  1893. 

Sec  3706.  An  Action  against  a  Railroad  Corporation  for  damages  from  fires 
must  be  brought  within  three  years. 


CONNFXTICUT. 

GENERAL  STATUTES,  188S,  Chap.  98. 
Limitations  ok  Civil  Actions. 
Sec  1368.  Ejectment.     Reversionary    or   Remainder  Interests.  —  No  person 
shall  make  entry  into  any  lands  or  tenements,  hut  within  fifteen  yeats  next  after 
hi«  right  or  title  to  the  same  shall  first  descend  or  accrue,  etc. 

1170.   Suits  on  Specialties.  —  No  action  shall  be  brought  on  any  contract 
undei    Beal   or   promissory  note  not  negotiable,  but  within  seventeen  years  next 


CONNECTICUT.  705 

after  an  action  on  the  same  shall  accrue;  but  persons,  legally  incapable  to  sue 
thereon  at  the  accruing  of  the  right  of  action,  may  sue  at  any  time  within  four 
years  after  their  becoming  legally  capable  to  bring  such  action. 

Sec.  1371.  On  Simple  Contracts.  —  No  action  for  an  account,  or  for  a  debt 
due  bv  book  to  balance  book  accounts,  or  on  any  simple  or  implied  contract,  or 
upon  any  contract  in  writing,  not  under  seal,  except  promissory  notes  not 
negotiable,  shall  be  brought  but  within  six  years  next  after  the  right  of  action 
shall  accrue;  but  persons  legally  incapable  to  bring  any  such  action  at  the 
accruing  of  the  right  of  action,  may  sue  at  any  time  within  three  years  after 
becoming  legally  capable  to  bring  such  action. 

Sec.  1372.  Oral  Contracts. —  Excepting  actions  for  a  debt  due  by  book,  or 
actions  founded  on  proper  subjects  of  book  debt,  no  action  founded  upon  any 
express  contract  or  agreement,  not  reduced  to  writing,  or  of  which  some  note 
or  memorandum  shall  not  be  made  in  writing,  and  signed  by  the  party  to  be 
charged  therewith  or  his  agent,  shall  be  brought  but  within  three  years  next 
after  the  right  of  action  shall  accrue. 

Sec.  1373.  Limitation  of  Action  on  Note  alleged  to  have  been  fraudulently 
obtained. —  No  action  shall  be  brought  on  a  negotiable  note,  if  the  holder 
thereof  has  been  notified  in  wriling  by  the  maker  thereof,  or  his  attorney  or 
agent,  that  said  note  was  obtained  of  the  maker  in  pursuance  of  a  conspiracy, 
or  of  a  general  intent  to  defraud,  unless  the  same  shall  be  brought  within  one 
year  after  such  notice  was  given,  or  six  months  after  such  note  became  due. 
nor  shall  any  claim  be  maintained  against  the  estate  of  any  deceased  person  or 
insolvent  debtor,  unless  such  claim  shall  be  presented  within  the  time  above 
specified  after  notice  as  aforesaid.  If  any  such  note  has  been  or  shall  be 
negotiated  after  it  has  become  due,  the  provisions  of  this  section  shall  be  held 
to  apply  to  any  action  or  proceeding  founded  upon  such  note  in  as  full  a  man- 
ner as  if  the  plaintiff  in  such  action  or  proceeding  had  been  the  holder  of  such 
note  at  the  time  when  such  notice  was  given. 

Sec.  1374.  Settlement  of  Partnership  or  Joint  Accounts. —  In  all  cases  of 
partnership,  and  of  joint  occupancy  of  real  or  personal  estate,  the  court,  before 
which  any  action  for  the  settlement  or  adjustment  of  the  partnership  or  joint 
account  may  be  pending,  shall  take  into  consideration,  in  making  such  settle- 
ment, all  the  partnership  or  joint  transactions  since  the  lime  of  the  last  settle- 
ment, although  more  than  six  years  may  have  elapsed  since  said  settlement. 

Sec.  1375.  Torts  -without  Force.  —  No  action  upon  a  tort  unaccompanied  with 
force  and  where  the  injury  is  consequential  shall  be  brought  but  within  six 
years  next  after  the  right  of  action  shall  accrue. 

Sec.  1376.  Trespass  and  Slander. —  No  action  for  trespass  to  person  or  prop- 
erty, or  for  slanderous  words,  shall  be  brought  but  within  three  years  next  after 
the  right  of  action  shall  accrue. 

Sec.  1377.  Scire  Facias  against  Garnishee.  —  No  writ  of  scire  facias  against 
any  garnishee  shall  be  brought  but  within  cue  year  next  after  the  right  of  bring- 
ing it  shall  accrue. 

Sec.  1378.  Forcible  Entry  and  Detainer. —  No  complaint  for  a  forcible  entry 
and  detainer  shall  be  brought,  but  within  six  months  after  the  entry  com- 
plained of. 

Sec.  1379.  Penal  Forfeitures.  —  No  suit  for  any  forfeiture,  upon  any  penal 
statute,  shall  be  brought,  but  within  one  year  next  after  the  commission  of  the 
offense. 

[stats,  of  lim. — 45] 


706  STATUTES   OF    LIMITATION. 

Sec.  1380.  Action  on  Bond  or  Recognizance  for  Costs.  —  No  action  shall  be- 
brought  against  the  surety  on  any  bond  for  costs  only,  or  recognizance  for  costs, 
given  in  any  civil  action,  or  on  the  appeal  of  any  civil  cause,  or  bail-bond, 
except  within  one  year  after  final  judgment  has  been  rendered  in  the  suit  in 
which  such  bond  or  recognizance  was  given. 

Sec.  13S1.  Against  Officers  for  Neglect  of  Duty.  —  No  civil  action  shall  be 
brought  against  any  sheriff,  sheriff's  deputy,  or  constable,  for  any  neglect  or 
default  in  his  office  and  duty,  but  within  two  years  next  after  the  right  of  action 
shall  accrue. 

Sec.  1382.  Bastardy  Process.  —  No  complaint  of  bastardy  shall  be  brought 
after  three  years  from  the  birth  of  the  bastard. 

Sec.  13S3.  Suit  against  Railroad  Company  for  Loss  of  Life. —  No  suit  against 
a  railroad  company  for  damages  for  the  loss  of  any  life,  shall  be  brought  by  the 
executor  of  the  deceased  person,  except  within  one  year  from  and  after  the  death 
of  such  person.     [As  amended  by  St.  1895,  c.  45,] 

Sec.  13S6.  Accident  Failure  of  Suit.     [Amended by  St.  1895,  c.  153.] 

Sec.  13S9.  Cause  of  Action  fraudulently  concealed.  —  If  any  person,  liable  to 
an  action  by  another,  shall  fraudulently  conceal  from  him  the  existence  of  the 
cause  of  such  action,  said  cause  of  action  shall  be  deemed  to  accrue  against 
said  person  so  liable  therefor,  at  the  time  when  the  person  entitled  to  sue 
thereon  shall  first  discover  its  existence. 

Sec.  1390.  Easements.  —  No  person  shall  acquire  a  right  of  way,  nor  any 
other  easement,  from,  in,  upon,  or  over  the  land  of  another  by  the  adverse  use 
or  enjoyment  thereof  unless  such  use  has  been  continued  uninterrupted  for 
fifteen  years. 

Sees.  1391-1394.  How  to  prevent  the  acquisition.  —  The  owner  of  land  over 
which  such  way  or  easement  is  claimed  or  used  may  give  notice  in  writing  to 
the  person  claiming  or  using  the  privilege,  of  his  intention  to  dispute  such 
right  of  way  or  other  easement,  and  to  prevent  the  other  party  from  acquiring 
such  right,  and  such  notice,  being  served  and  recorded  as  provided  in  the  two  suc- 
ceeding sections,  shall  be  deemed  an  interruption  of  such  use,  and  shall  prevent 
the  acquiring  of  a  right  thereto  by  the  continuance  of  the  use  for  any  length  of 
time  thereafter,  &c. 

DELAWARE. 

REVISED  STATUTES  OF  1852,  AS  AMENDED  IN   1893. 
Chap.  122.  —  Limitation  of  Real  Actions. 

Sec.  1.  Right  of  Entry  barred  in  Twenty  Years. —  No  person  shall  make  an 
entry  into  any  lands,  tenements,  or  hereditaments,  but  within  twenty  years 
next  after  his  right,  or  title,  to  the  same,  first  descended,  or  accrued. 

Sec.  2.  Actual  Seisin  within  Twenty  Years  necessary.  —  No  person  shall 
have,  or  maintain  any  writ  of  right,  or  action,  real,  personal,  or  mixed,  for,  or 
make  any  prescription,  or  claim,  to,  or  in,  any  lands,  tenements,  or  heredita- 
ments, of  the  seizing,  or  possession  of  him,  his  ancestor,  or  predecessor,  and 
declare,  or  allege,  in  any  manner  whatever,  any  further  seizing  of  him,  his 
ancestor,  or  predecessor,  but  only  an  actual  seizing  of  him,  his  ancestor  or  pre- 
decessor, of  the  premises  sued  for,  or  claimed,  within  twenty  years  next  before 
such  writ,  or  action. 


DELAWARE.  707 

Sec.  3.  Infancy.  Coverture.  Insanity.  Duress. —  If  at  any  time  when  such 
right  or  entry  upon,  or  action  for  any  lands  or  lenements  shall  first  accrue,  the 
person  entitled  to  such  entry,  or  action,  shall  be  an  infant,  or  a  married  woman, 
insane,  or  imprisoned,  such  person,  or  any  one  claiming  from,  by,  or  under  him, 
may  make  the  entry,  or  bring  the  action,  at  any  time  within  ten  years  after  such 
disability  shall  be  removed,  notwithstanding  ihe  twenty  years  before  limited  in 
that  behalf  shall  have  expired. 

Sec.  4.  Saving  survives  in  Case  of  Death  under  Disability.  —  If  the  person 
entitled  to  an  entry,  or  action,  die  under  any  of  the  disabilities  aforesaid,  any 
other  person  claiming  from,  by,  or  under  him,  shall  have  the  same  benefit 
which  the  person  first  entitled  would  have  had,  by  living  till  the  removal  of  the 
disability. 

Chap.  123.  —  Limitation  of  Personal  Actions. 

Sec.  6.  Certain  Personal  Actions.  Three  Years.  —  No  action  of  trespass,  no 
action  of  replevin,  no  action  of  detinue,  no  action  of  debt  not  founded  upon  a 
record  or  specialty,  no  action  of  account,  no  action  of  assumpsit,  and  no  action 
upon  the  case  shall  be  brought  after  the  expiration  of  three  years  from  the 
accruing  of  the  cause  of  such  action;  subject,  however,  to  the  provisions  of  the 
three  next  following  sections. 

Sec.  7.  Mutual  Accounts. —  In  the  case  of  a  mutual  and  running  account 
between  parties,  the  limitation  shall  not  begin  to  run  while  such  account  con- 
tinues open  and  current. 

Sec.  8.  Promissory  Notes,  &c. —  When  the  cause  of  action  arises  from  a 
promissory  note,  bill  of  exchange,  or  an  acknowledgment  under  the  hand  of  the 
party  of  a  subsisting  demand,  the  action  may  be  commenced  at  any  time  within 
six  years  from  the  accruing  of  such  cause  of  action. 

Sec.  o-  Action  for  Mesne  Profits,  after  Ejectment.  —  When,  after  a  recovery 
in  ejectment,  an  action  is  brought  for  mesne  profits,  if  such  action  be  com- 
menced within  six  months  after  the  judgment,  or  if  there  be  a  writ  of  error, 
within  six  months  after  the  affirmance  of  said  judgment,  or  other  determination 
of  the  proceeding  in  error,  the  said  action  shall,  so  far  as  to  avoid  the  Interme- 
diate operation  of  the  sixth  section,  be  deemed  a  continuation  of  the  proceed- 
ing in  ejectment;  and  the  plaintiff  shall  not  be  debarred  from  recovering  mesne 
profits  for  three  years  next  preceding  the  commencement  of  the  ejectment. 

Sec.  10.  Action  of  Waste.     Three  Years. 

Sec.  12.  Penal  Actions.  —  No  civil  action  for  a  forfeiture  upon  a  penal  statute, 
whether  at  the  suit  of  the  party  aggrieved  or  of  a  common  informer,  or  of  the 
State,  or  otherwise,  shall  be  brought  after  the  expiration  of  one  year  from  the 
accruing  of  the  cause  of  such  action. 

Supplemental  Acts. 

The  Act  of  1SQ3,  chap.  77S,  limited  judgment  liens  upon  real  estate  to  ten 
years,  &c. 

The  Act  of  1897,  chap.  594,  limited  actions  for  damages  for  personal  injuries 
to  one  year. 

Sec.  16.  (2754.)  Set-off.  —  The  provisions  of  this  chapter  shall  apply  to  any 
debt  alleged  by  way  of  set-off  on  the  part  of  a  defendant;  and  the  time  of  limi- 
tation of  such  debt  shall  be  computed  in  like  manner  as  if  an  action  therefor 
had  been  commenced  at  the  time  when  the  plaintiff's  action  commenced. 


yoS  STATUTES   OF   LIMITATION. 


FLORIDA. 

REVISED  STATUTES,   1892,  Title  i,  Chap.  26. 
Limitation  of  Actions. 

Sec.  1287.  Actions  for  the  Recovery  of  Real  Property.  —  No  action  for  the 
recovery  of  real  property,  or  for  the  recovery  of  the  possession  thereof,  shall  be 
maintained  unless  it  appear  that  the  plaintiff,  his  ancesior,  predecessor,  or 
grantor,  was  seized  or  possessed  of  the  premises  in  question  within  seven  years 
before  the  commencement  of  such  action. 

Sec.  128S.  Action  Founded  on  Title  to  Real  Property.  —  No  cause  of  action 
or  defence  to  an  action  founded  upon  the  title  to  real  property,  or  to  rents,  or 
to  service  out  of  the  same,  shall  be  effectual  unless  it  appear  that  the  person 
prosecuiing  the  action,  or  making  the  defence,  or  under  whose  title  the  action 
is  prosecuted  or  the  defence  is  made,  or  the  ancestor,  predecessor,  or  grantor  of 
such  person  was  seized  or  possessed  of  the  premises  in  question  within  seven 
years  before  the  accruing  of  the  right  of  action  or  defence  in  respect  to  which 
such  action  is  prosecuted  or  defence  made,  or  unless  it  appear  that  the  title  to 
such  premises  was  derived  from  the  United  States  or  the  State  of  Florida  within 
seven  years  before  the  commencement  of  such  action;  and  the  cause  of  action 
shall  not  commence  to  run  until  the  date  of  the  patent  issued  by  the  State  or  the 
United  States. 

Sec.  1289.  Possession  by  Legal  Owner,  Presumed.  —  In  every  action  for  the 
recovery  of  real  property,  or  the  possession  thereof,  the  person  establishing  a 
legal  title  to  the  premises  shall  be  presumed  to  have  been  possessed  thereof 
within  the  time  prescribed  by  law,  and  the  occupation  of  such  premises  by  any 
other  person  shall  be  deemed  to  have  been  under  and  in  subordination  to  the 
legal  title,  unless  it  appear  that  such  premises  have  been  held  and  possessed 
adversely  to  such  legal  title  for  seven  years  before  the  commencement  of  such 
action. 

Sees.  1290-1291.  Adverse  Possession  Defined. 

Sec.  1294.  Personal  Actions.  — Actions  other  than  those  for  the  recovery  of 
real  property  can  only  be  commenced  as  follows: 

1.  Within  twenty  years.  —  An  action  upon  a  judgment  or  decree  of  a  court  of 
record  in  the  State  of  Florida,  and  an  action  upon  any  contract,  obligation,  or 
liability  founded  upon  an  instrument  of  writing  under  seal. 

2.  Within  seven  years.  —  An  action  upon  a  judgment  or  decree  of  any  court 
of  the  United  States,  or  of  any  State  or  Territory  within  the  United  States,  or 
of  any  foreign  country. 

3.  Within  five  years.  —  An  action  upon  any  contract,  obligation,  or  liability 
founded  upon  an  instrument  of  writing  not  under  seal. 

4.  Within  four  years.  —  An  action  for  any  articles  charged  in  a  store  account, 
or  any  action  for  relief  not  specifically  provided  for  in  this  chapter. 

5.  Within  three  years.  —  An  action  upon  a  liability  created  by  statute,  other 
than  a  penalty  or  forfeiture;  an  action  for  trespass  upon  real  property;  an 
action  for  taking,  detaining,  or  injuring  any  goods  or  chattels,  including  aciions 
for  the  specific  recovery  of  personal  property;  an  action  for  relief  on  the  ground 
of  fraud,  the  cause  of  action  in  such  case  not  to  be  deemed  to  have  accrued  until 
the  discovery  by  the  aggrieved  parly  of  the  facts  constituting  the  fraud;  and  an 


GEORGIA.  709 

action  upon  a  contract,  obligation,  or  liability  not  founded  upon  an  instrument 
of  writing,  except  an  action  on  an  open  account  for  goods,  wares  and  mer- 
chandise. 

6.  Within  two  years.  — An  action  by  another  than  the  State  upon  a  statute  for 
a  penalty  or  forfeiture;  an  action  for  libel,  slander,  assault,  battery,  or  false 
imprisonment;  an  action  on  an  open  account  for  goods,  wares  and  merchandise 
sold  and  delivered. 

7.  Within  one  year.  — An  action  by  the  State  for  a  penalty  or  forfeiture  under 
a  penal  act  of  the  legislature. 

In  an  action  brought  to  recover  a  balance  due  upon  a  mutual,  open  and  cur- 
rent account,  where  there  have  been  reciprocal  demands  between  the  parties, 
the  cause  of  action  shall  be  deemed  to  have  accrued  from  the  time  of  the  last 
item  proved  in  the  account  on  either  side. 

Supplemental  Acts. 
The  Act  of  1895,  chap.  4412,  provided  "  that  no  action  for  the  recovery  of  real 
property  or  of  its  possession  against  a  person  without  color  of  title  shall  be 
barred  within  twenty  years  next  after  the  accruing  of  the  right  of  action,  nor 
shall  any  occupation  of  the  premises  by  a  person  without  color  of  title  for  less 
than  twenty  years  be  deemed  an  adverse  possession." 


GEORGIA. 

CIVIL  CODE,   1895. 

Art  8.  Of  Limitation  of  Actions  on  Contracts. 

Sec.  I.   Periods  of  Limitation. 

Sec.  3760.  On  Foreign  Judgment.  —  All  suits  upon  judgments  obtained  out  of 
this  State  shall  be  brought  within  five  years  after  such  judgment  is  obtained. 

Sec.  3761.  Dormancy  of  Judgments.  —  No  judgment  shall  be  enforced  after 
seven  years  from  its  rendition,  when  no  execution  has  been  issued  upon  it  and 
the  same  placed  upon  the  execution  docket,  or  when  execution  has  been  issued 
and  seven  years  have  expired  from  the  time  of  the  record,  upon  the  execution 
docket  of  the  court  from  which  the  same  issued,  of  the  last  entry  upon  the 
execution  made  by  an  officer  authorized  to  execute  and  return  the  same.  Such 
judgment  may  be  revived  by  scire  facias,  or  be  sued  on  within  three  years  from 
the  time  they  became  dormant. 

Sec.  3765.  On  Specialties.  —  Actions  upon  bonds  or  other  instruments  under 
seal  shall  be  brought  within  tiventy  years  after  the  right  of  action  accrues,  but 
no  instrument  shall  be  considered  under  seal  unless  so  recited  in  the  body  of 
the  instrument. 

Sec.  3766.  Statutory  Rights.  —  All  suits  for  the  enforcement  of  rights  accru- 
ing to  individuals  under  statutes,  acts  of  incorporation,  or  by  operation  of  law, 
shall  be  brought  within  twenty  years  after  the  right  of  action  accrues. 

Sec.  3767.  Simple  Contracts.  —  All  actions  upon  promissory  notes,  bills  of 
exchange,  or  other  simple  contract  in  writing,  shall  be  brought  within  six  years 
after  the  same  become  due  and  payable. 

Sec.  3768.  Open  Accounts.  —  All  actions  upon  open  account,  or  for  the  breach 
of  any  contract  not  under  the  hand  of  the  party  sought  to  be  charged,  or  upon 


7IO  STATUTES   OF   LIMITATION. 

any  implied  assumpsit  or  undertaking,  shall  be  brought  within  four  years  after 
the  right  of  action  accrues. 

Sec.  3772.  Suits  Against  Executors,  Administrators,  &c.  —  All  actions  against 
executors,  administrators,  guardians,  or  trustees,  except  on  their  bonds,  must 
be  brought  within  ten  years  after  the  right  of  action  accrues. 

Sec.  3774.  Other  Actions  ex  Contractu.  — All  other  actions  upon  contracts, 
express  or  implied,  not  hereinbefore  provided  for,  must  be  brought  within  four 
years  from  the  accrual  of  the  right  of  action. 

Sec.  3775.  Limitations  in  Equity.  — The  limitations  herein  provided  apply- 
equally  to  all  courts;,  and,  in  addition  to  the  above,  courts  of  equity  may  inter- 
pose an  equitable  bar,  whenever,  from  the  lapse  of  time  and  laches  of  the  com- 
plainant, it  would  be  inequitable  to  allow  a  party  to  enforce  his  legal  rights. 

Sec.  3776.  Suits  by  Informers.  —  All  actions  by  informers  to  recover  any  fine, 
forfeiture  or  penalty,  shall  be  commenced  within  one  year  from  the  time  the 
defendant's  liability  thereto  was  discovered,  or  by  reasonable  diligence  could 
have  been  discovered. 

Sec.  3777.  Limitations  to  operate  against  the  State.  —  When,  by  the  pro- 
visions of  the  foregoing  sections,  a  private  person  would  be  barred  of  his  rights, 
the  State  shall  be  barred  of  her  rights  under  the  same  circumstances. 

Sec.  37S7.   Claims  pleaded  as  Set-off.  —  Where  any  matter  has  been  pleaded 

as  a  set-off  in  a  suit,  and  the  suit  is  dismissed,  or  the  case  is  otherwise  disposed 

of  vvithout  a   hearing    upon   the  merits  of  the  setoff,  such  set-off  shall  not  be 

barred  until  the  expiration  of  six  months  next  after  the  time  of  such  disposition 

of  such  suit. 

Title  7.  Chap.  6. 

Sec.  3588.  Prescription  by  Twenty  Years'  Possession.  —  Actual  adverse  pos- 
session of  lands  by  itself,  for  twenty  years,  shall  give  good  title  by  prescription 
against  every  one,  except  the  State,  or  persons  laboring  under  the  disabilities 
hereinafter  specified. 

Sec.  35S9.  Seven  Years'  Possession  uDder  written  Evidence  of  Title.  — 
Adverse  possession  of  lands,  under  written  evidence  of  title,  for  seven  years,  shall 
give  a  like  title  by  prescription.  But  if  such  written  title  be  forged  or  fraudu- 
lent, and  notice  thereof  be  brought  home  to  the  claimant  before  or  at  the  time 
of  the  commencement  of  his  possession,  no  prescription  can  oe  based  thereon. 

Sec.  3590.  Prescriptive  right  to  Easement.  —  An  incorporeal  right  which  may 
be  lawfully  granted,  as  a  right  of  way  or  the  right  to  throw  water  upon  the 
land  of  another,  may  be  acquired  by  prescription. 

Sec.  3592.  Personalty.  —  Adverse  possession  of  personal  property  within  this 
State  of  four  years  shall  give  a  like  title  by  prescription.  No  prescription  arises 
if  the  property  be  concealed  or  removed  out  of  the  State,  or  otherwise  is  not 
subject  to  reclamation. 


HAWAIIAN  ISLANDS. 

CIVIL  LAWS  (1897).  Chap.  88. 

Sec.  1287.  Actions  to  be  Commenced  within  Six  Years.  —  1.  Actions  for  the 
recovery  of  any  debt  founded  upon  any  contract,  obligation  or  liability,  except- 
ing such  as  are  brought  upon  the  judgment  or  decree  of  some  court  of  record. 

2.   Actions  upon  judgments  rendered  in  any  court  not  being  a  court  of  record. 


IDAHO.  711 

3.  Actions  of  debt  for  arrearages  of  rent. 

4.  Actions  for  trespass  upon  lands. 

5.  Actions  for  taking,  detaining  or  injuring  any  goods  or  chattels,  including 
actions  of  replevin. 

6.  Special  aciions  on  the  case  for  criminal  conversation,  for  libels,  or  for  any 
other  injury  to  the  persons  or  rights  of  any,  except  such  as  are  specified  in  the 
next  two  sections. 

Sec.  1288.  Four  Years.  —  Actions  for  the  recovery  of  any  debt  founded  upon 
any  contract,  obligation  or  liability,  where  the  cause  of  aciion  has  arisen  in  any 
foreign  country,  except  such  as  are  brought  upon  the  judgment  or  decree  of  a 
court  of  record. 

Sec.  1289.  Two  Years.  —  1.   Actions  for  assault  and  battery. 

2.  Actions  for  false  imprisonment. 

3.  Actions  for  words  spoken  slandering  the  character  or  til le  of  any  person. 

4.  Actions  for  words  spoken  whereby  special  damages  are  sustained. 

5.  Actions  against  the  marshal,  sheriffs  or  other  officers,  for  the  escape  of 
prisoners,  or  upon  any  liability  incurred  by  them  by  (the)  doing  any  act  in  their 
official  capacity,  or  by  the  omission  of  any  official  duty. 

Action  to  Recover  the  Possession  of  Land. 

Sec.  1305.  No  person  shall  commence  an  action  to  recover  possession  of  any 
lands,  or  make  any  entry  thereon,  unless  within  twenty  years  after  the  right  to 
bring  such  action  first  accrued. 


IDAHO. 


REVISED  STATUTES,  1887.     CODE  OF  CIVIL  PROCEDURE,  Part  II. 

Title  II.  —  Of  the  Time  of  Commencing  Civil  Actions. 

Chap.  2.  —  For  the  Recovery  of  Real  Property. 

Sec.  4036.  Seisin  within  Five  Years,  when  necessary.  —  No  action  for  the 
recovery  of  real  property,  or  for  the  recovery  of  the  possession  thereof,  can  be 
maintained,  unless  it  appear  that  the  plaintiff,  his  ancestor,  predecessor,  or 
grantor,  was  seized  or  possessed  of  Ihe  property  in  question  within  five  years 
before  the  commencement  of  the  action;  and  this  section  includes  possessory 
rights  to  lands  and  mining  claims. 

Sec.  4037.  Seisin,  when  necessary  in  Action  or  Defense. 

Sec.  4038.  Entry  en  Real  Estate.  —  No  entry  upon  real  estate  is  deemed  suffi- 
cient cr  valid  as  a  claim,  unless  an  action  be  commenced  thereupon  within  one 
year  after  making  such  entry,  and  within  five  years  from  the  time  when  the 
right  to  make  it  descended  or  accrued. 

Sec.  4030.  Possession,  when  Presumed. 

Sees.  4040-4043.  Occupation  and  Adverse  Possession. 

Chap.  3.  —  For  the  Recovery  of  Property  other  than  Real. 

Sec.  4050.  Periods  of  Limitation  prescribed. — The  periods  prescribed  for 
the  commencement  of  actions  other  than  for  the  recovery  of  real  property  are 
as  follows: — 


712  STATUTES   OF    LIMITATION. 

Sec.  4051.  Within  Six  Years.  —  1.  An  action  upon  a  judgment  or  decree  of 
any  court  of  the  United  States,  or  of  any  State  or  Territory  within  the  United 
Stales. 

2.  An  action  for  mesne  profits  of  real  property. 

Sec.  4052.  Within  Five  Years.  —  An  action  upon  any  contract,  obligation,  or 
liability,  founded  upon  an  instrument  of  writing. 

Sec.  4053.  Within  Four  Years.  —  An  action  upon  a  contract,  obligation,  or 
liability,  not  founded  upon  an  instrument  of  writing. 

Sec.  4054.  Within  Three  Years.  —  An  action  upon  a  liability  created  by 
Statute,  other  than  a  penalty  or  forfeiture. 

2.  An  action  for  trespass  upon  real  property. 

3.  An  action  for  taking,  detaining,  or  injuring  any  goods  or  chattels,  includ- 
ing actions  for  the  specific  recovery  of  personal  property. 

4.  An  action  for  relief  on  the  ground  of  fraud  or  mistake.  The  cause  of 
action  in  such  case  not  to  be  deemed  to  have  accrued  until  the  discovery  by  the 
aggrieved  party  of  the  facts  constituting  the  fraud  or  mistake 

Sec.  4055.  Within  Two  Years.  —  1.  An  action  against  a  sheriff,  coroner,  or 
constable,  upon  the  liability  incurred  by  the  doing  of  an  act  in  his  official 
capacity,  and  in  virtue  of  his  office,  or  by  the  omission  of  an  official  duty, 
including  the  non-payment  of  money  collected  upon  an  execution. 

2.  An  action  upon  a  statute  for  a  penalty  or  forfeiture,  when  the  action  is 
given  to  an  individual,  or  lo  an  individual  and  the  Territory,  except  when  the 
statute  imposing  it  prescribes  a  different  limitation. 

3.  An  action  upon  a  statute,  or  upon  an  undertaking  in  a  criminal  action,  for 
a  forfeiture  or  penalty  to  a  county  or  to  the  people  of  the  Territory. 

4.  An  action  to  recover  damages  for  the  death  of  one  caused  by  the  wrongful 
act  of  another. 

5.  An  action  for  libel,  slander,  assault,  battery,  false  imprisonment,  or 
seduction. 

6.  An  action  against  a  sheriff,  or  other  officer,  for  the  escape  of  a  prisoner, 
arrested  or  imprisoned  on  civil  process. 

Sec.  4056.   Within  One  Year.  — An  action  against  an  officer,  or  officer  de  facto, 

1.  To  recover  any  goods,  wares,  merchandise,  or  other  property,  seized  by 
any  such  officer  in  his  official  capacity  as  tax-collector,  or  to  recover  the  price 
or  value  of  any  goods,  wares,  merchandise,  or  other  personal  property  so 
seized,  or  for  damages  for  the  seizure,  detention,  sale  of  or  injury  to  any  goods, 
wares,  merchandise,  or  other  personal  property  seized,  or  for  damages  done  to 
any  person  or  property  in  making  any  such  seizure. 

2.  For  money  paid  to  any  such  officer  under  protest,  or  seized  by  such  officer 
in  his  official  capacity  as  a  collector  of  taxes,  and  which,  it  is  claimed,  ought  to 
be  refunded. 

Sec.  4057.  Within  Six  Months.  —  Actions  on  claims  against  a  county,  which 
have  been  rejected  by  the  board  of  commissioners,  must  be  commenced  within 
six  months  after  the  first  rejection  thereof  by  such  board. 

Sec.  4058.  Mutual  Accounts.  —  In  an  action  brought  to  recover  a  balance  due 
upon  a  mutual,  open,  and  current  account,  where  there  have  been  reciprocal 
demands  between  the  parties,  the  cause  of  action  is  deemed  to  have  accrued 
from  the  time  of  the  last  item  proved  in  the  account  on  either  side. 

Set  .  4059,  Deposits  with  Banks  or  Bankers.  —  To  actions  brought  to  recover 
money  or  other  properly  deposited   with   any  bank,  banker,  trust   company,  or 


ILLINOIS.  7I3 

savings  and  loan  society,  no  limitation  begins  (o  run  until  after  an  authorized 
demand, 

Sec.  4060.  Actions  fcr  Relief  not  hereinbefore  provided  for.  —  An  action  for 
relief  not  hereinbefore  provided  for  must  be  commenced  within  four  days  after 
the  cause  of  action  shall  have  accrued. 


ILLINOIS. 


REVISED  STATUTES,   1891,  Chap.  83. 

Limitations. 

An  Act  in  regard  to  Limitations.  [Approved  April  4.,  1872.  In  force  July  1, 
1872.     L.  1871-72,  p.  556.] 

1.  Twenty  Years.  —  Sec.  1.  Be  it  enacted,  etc..  that  no  person  shall  commence 
an  action  for  the  recovery  of  lands,  nor  make  an  entry  thereon,  unless  within 
twenty  years  after  the  right  to  bring  such  aclion  or  make  such  entry  first 
accrued,  or  within  twenty  years  after  he  or  those  from,  by,  or  under  whom  he 
claims,  have  been  seised  or  possessed  of  the  premises,  except  as  hereinafter 
provided. 

2.  Time,  how  computed.  —  Sec.  2.  If  such  right  or  title  first  accrued  to  an 
ancestor  or  predecessor  of  the  person  who  brings  the  action  or  makes  the  entry, 
or  to  any  person  from,  by,  or  under  whom  he  claims,  the  twenty  years  shall  be 
computed  from  the  time  when  the  right  or  title  so  first  accrued. 

3.  When  Right  of  Entry  or  to  bring  Action  Accrues.  —  Sec.  3.  The  right  to 
make  an  entry  or  bring  an  action  to  recover  land  shall  be  deemed  to  have  first 
accrued  at  the  times  respectively  hereinafter  mentioned,  that  is  to  say:  — 

First.  When  any  person  is  disseised,  his  righl  of  entry  or  of  action  shall  be 
deemed  to  have  accrued  at  the  time  of  such  disseisin. 

Second.  When  he  claims  as  heir  or  devisee  of  one  who  died  seised,  his  right 
shall  be  deemed  to  have  accrued  at  the  time  of  such  death,  unless  there  is  a 
tenancy  by  the  curtesy  or  other  estate  intervening  after  the  death  of  such 
ancestor  or  devisor;  in  which  case  his  right  shall  be  deemed  to  accrue  when 
such  intermediate  estate  expires,  or  when  it  would  have  expired  by  its  own 
limitations. 

Third.  When  there  is  such  an  intermediate  estate,  and  in  all  other  cases 
when  the  party  claims  by  force  of  any  remainder  or  reversion,  his  right,  so  far 
as  it  is  affected  by  the  limitation  herein  prescribed,  shall  be  deemed  to  accrue 
when  the  intermediate  or  precedent  estate  would  have  expired  by  its  own  lim- 
itation, notwithstanding  any  forfeiture  thereof  by  which  he  might  have  entered 
at  an  earlier  time. 

Fourth.  The  preceding  clause  shall  not  present  a  person  from  entering  when 
entitled  to  do  so  by  reason  of  any  forfeiture  or  breach  of  condition;  but  if  he 
claims  under  such  a  title,  his  right  shall  be  deemed  to  have  accrued  when  the 
forfeiture  was  incurred  or  the  condition  was  broken. 

Fifth.  In  all  cases  not  otherwise  specially  provided  for,  the  right  shall  be 
deemed  to  have  accrued  when  the  claimant,  or  the  person  under  whom  he 
claims,  first  became  entitled  to  the  possession  of  the  premises  under  the  title 
upon  which  the  entry  of  the  action  is  founded. 


7H  STATUTES   OF    LIMITATION. 

4-8.   Seven  Years,  ■with  Posssssion  &  Record  Title,  or  Color  of  Title,  &c.  — 

Sec.  4. 

II.  Mortgage. — Sec.  n.  No  person  shall  commence  an  action  or  make  a 
sale  to  foreclose  any  mortgage  or  deed  of  trust  in  the  nature  of  a  mortgage, 
unless  within  ten  years  after  the  right  of  aciion  or  right  to  make  such  sale 
■accrues. 

Personal  Actions. 

12. —  Sec.  12  The  following  actions  can  only  be  commenced  wiihin  the 
periods  hereinafter  prescribed,  except  when  a  different  limitation  is  prescribed 
by  statute. 

13.  Slander  and  Libel.  —  Sec.  13.  Actions  for  slander  or  libel  shall  be  com- 
menced within  one  year  next  after  the  cause  of  action  accrued. 

14.  Personal  Injuries,  Penalties,  &c.  —  Sec.  14.  Actions  for  damages  for  an 
injury  to  the  person,  or  for  false  imprisonment,  or  malicious  prosecution,  or  for 
a  statutory  penalty,  or  for  abduction,  or  for  seduction,  or  for  criminal  conver- 
sation, shall  be  commenced  within  two  years  next  after  the  cause  of  action 
accrued. 

15  On  Oral  Contracts,  Damages,  &c.  —  Sec.  15.  Actions  on  unwritten  con- 
tracts, expressed  or  implied,  or  on  awards  of  arbitration,  or  to  recover  damages 
for  an  injury  done  to  property,  real  or  personal,  or  to  recover  the  possession  of 
personal  property  or  damages  for  the  detention  or  conversion  thereof,  and  all 
civil  actions  not  otherwise  provided  for,  shall  be  commenced  wiihin  five  years 
next  after  the  cause  of  action  accrued. 

16.  On  Writings,  New  Contracts.  —  Sec.  16.  Actions  on  bends,  promissory 
notes,  bills  of  exchange,  written  leases,  written  contracts,  or  other  evidences  of 
indebtedness  in  writing,  shall  be  commenced  within  ten  years  next  after  the 
cause  of  action  accrued;  but  if  any  payment  or  new  promise  to  pay  shall  have 
been  made,  in  writing,  on  any  bond,  note,  bill,  lease,  contract,  or  other  written 
evidence  of  indebtedness,  within  or  after  the  said  period  of  ten  years,  then  an 
action  may  be  commenced  thereon  at  any  time  within  ten  years  after  the  time 
of  such  payment  or  promise  to  pay. 

17.  Set-off  or  Counterclaim.  —  Sec.  17.  A  defendant  may  plead  a  set-off  or 
counterclaim  barred  by  the  statute  of  limitation,  while  held  and  owned  by  him, 
to  any  action,  the  cause  of  which  was  owned  by  the  plaintiff  or  person  under 
whom  he  claims,  before  such  set-off  or  counterclaim  was  so  barred,  and  not 
otherwise:  Provided,  this  section  shall  not  affect  the  right  of  a  bona  fide  assignee 
of  a  negotiable  instrument  assigned  Defore  due. 

22.  Fraudulent  Concealment.  —  Sec.  22.  If  a  person  liable  to  an  action 
fraudulently  conceals  the  cause  of  such  action  from  the  knowledge  of  the  person 
entitled  thereto,  the  action  may  be  commenced  at  any  time  within  five  years 
after  the  person  entitled  to  bring  the  same  discovers  that  he  has  such  cause  of 
aciion,  and  not  afterwards. 

23.  When  Action  stayed,  Time  does  not  run.  —  Sec.  23.  When  the  commence- 
ment of  an  action  is  stayed  by  injunction,  order  of  a  judge  of  court,  or  statutory 
prohibition,  the  time  of  the  continuance  of  the  injunction  or  prohibition  is  not 
pan  of  the  time  limited  for  the  commencement  of  the  actions. 

SUPPLEMENTAL    ACT. 

By  Chap.  70,  Sec.  2.  An  Action  by  the  Representative  of  a  Decedent  for 
causing  the  death  must  be  brought  within  two  years  after  the  death. 


INDIANA.  715 

INDIANA. 

STATUTES  (1894,  by  BURNS),  Chap.  2,  Art.  6. 

Sec.  293.  Six  Years.  —  First.   On  accounts  and  contracts  not  in  writing. 

Second.   For  use,  rents,  and  profits  of  real  property. 

Third.  For  injuries  to  property,  damages  for  any  detention  thereof,  and  for 
recovering  possescion  of  personal  property. 

Fourth.   For  relief  against  frauds. 

Sec.  294.  Injury  to  Persons,  &c. 

First.  Two  Years.  —  For  injuries  to  person  or  character,  and  for  a  forfeiture 
or  penalty  given  by  statute,  within  two  years. 

Second.  Five  Years.  —  All  actions  against  a  sheriff  or  other  public  officer,  or 
against  such  officer  or  his  sureties  on  a  public  bond,  growing  out  of  a  liability 
incurred  by  doing  an  act  in  an  official  capacity,  or  by  the  omission  of  an  official 
duty,  within  Jive  years;  but  an  action  may  be  brought  against  the  officer  or  his 
legal  representatives,  for  money  collected  in  an  official  capacity,  and  not  paid 
over  at  any  time  within  six  years. 

Third.  Ten  Years.  —  For  the  recovery  of  real  property  sold  on  execution, 
brought  by  the  execution  debtor,  his  heirs,  or  any  person  claiming  under  him, 
by  title  acquired  after  the  date  of  the  judgment,  within  ten  years  after  the  sale. 

Fourth.  Executors'  Sales,  &c,  Five  Years.  —  For  the  recovery  of  real  prop- 
erty sold  by  executors,  administraiors,  guardians,  or  commissioners  of  a  court, 
upon  a  judgment  specially  directing  the  sale  of  property  sought  to  be  recovered, 
brought  by  a  party  to  the  judgment,  his  heirs,  or  any  person  claiming  a  title 
under  a  party,  acquired  after  the  date  of  the  judgment,  vj  i\.h'\n  Jive  years  after 
the  sale  is  confirmed. 

Fifth.  Notes,  &c,  Ten  Years.  —  Upon  promissory  notes,  bills  of  exchange, 
and  other  written  contracts  for  the  payment  of  money,  hereafter  executed, 
within  ten  years:  provided,  that  all  such  contracts  as  have  been  heretofore  exe- 
cuted may  be  enforced,  under  this  act,  within  such  time  only  as  they  have  to 
iun  before  being  barred  under  the  existing  law  limiting  the  commencement  of 
actions,  and  not  afterward. 

Sixth.  Twenty  Years.  —  Upon  contracts  in  writing  other  than  those  for  the 
payment  of  money  on  judgments  of  a  court  of  record,  and  for  the  recovery  of 
the  possession  of  real  estate,  within  twenty  years. 

Sec.  295.  Actions  not  otherwise  limited,  Fifteen  Years.  —  All  actions  not 
limited  by  any  other  statute  shall  be  brought  within  Jijteen years.  In  special 
cases,  where  a  different  limitation  is  prescribed  by  statute,  the  provisions  of 
this  act  shall  not  apply. 

Sec.  296.  Mutual  Accounts.  —  In  an  action  brought  to  recover  a  balance  due 
upon  a  mutual,  open,  and  current  account  between  the  parties,  the  cause  of 
action  shall  be  deemed  to  have  accrued  from  the  date  of  the  last  item  proved  in 
the  account  on  either  side. 

Sec.  297.  Legal  Disabilities.  —  Any  person  being  under  legal  disabilities 
when  the  cause  of  action  accrues,  may  bring  his  action  within  two  years  after 
the  disability  is  removed. 

Sec.  301.  Concealment  of  Cause  of  Action.  —  If  any  person  liable  to  an 
action  shall  conceal  the  fact  from  the  knowledge  of  the  person  entitled  thereto, 


716  STATUTES   OF   LIMITATION. 

the  action  may  be  commenced  at  any  time  within  the  period  of  limitation,  after 
the  discovery  of  the  cause  of  action. 

Sec.  303.  Payment  Memorandum.  —  Nothing  contained  in  the  preceding  sec- 
tions shall  take  away  or  lessen  the  effect  of  any  payment  made  by  any  person; 
but  no  indorsement,  or  memorandum  of  any  payment  made  upon  any  instru- 
ment of  writing,  by  or  on  behalf  of  the  party  to  whom  the  payment  shall  pur- 
port to  be  made,  shall  be  deemed  sufficient  to  exempt  the  case  from  the 
provisions  of  this  act. 

Sec.  305.  State  not  barred,  Sureties  excepted.  —  Limitation  of  actions  shall 
not  bar  the  State  of  Indiana,  except  as  to  sureties. 

Sec.  306.  Judgments  and  Decrees  deemed  satisfied  after  Twenty  Years.  — 
Every  judgment  and  decree  of  any  court  of  record  of  the  United  States,  or  of 
this  or  any  other  State,  shall  be  deemed  satisfied  after  the  expiration  of  twenty 
years. 

Sec.  307.  Joint  Debtor  not  liable  on  Payment.  —  Neither  a  joint  debtor  or  his 
representatives,  in  whose  favor  the  statute  of  limitations  has  operated,  shall  be 
liable  to  a  joint  debtor  or  surety,  or  their  representatives,  upon  payment,  by 
such  joint  debtor  or  surety,  or  their  representatives,  of  the  debt  or  any  part 
of  it. 

Chap.  6,  Art.  9. 

Sec.  2487.  Action  to  recover  Lands  fraudulently  Conveyed  by  Decedent.  — 

*  *  *  No  proceeding  by  any  executor  or  administrator,  to  sell  any  lands  so 
fraudulently  conveyed,  shall  be  maintained,  unless  the  same  shall  be  instituted 
within  five  years  after  the  death  of  the  testator  or  intestate. 


Art.   16. 

Sec.  2442.  Creditors'  Action  against  Distributees.  Disability.  —  The  heirs, 
devisees,  and  distributees  of  a  decedent  shall  be  liable,  to  the  extent  of  the 
property  received  by  them  from  such  decedent's  estate,  to  any  creditor  whose 
claim  remains  unpaid,  who,  six  months  prior  to  such  final  settlement,  was 
insane,  an  infant,  or  out  of  the  State;  but  such  suit  must  be  brought  within  one 
year  after  the  disability  is  removed:  provided,  that  suit  upon  the  claim  of  any 
creditor  out  of  the  State  must  be  brought  within  two  years  after  such  final 
settlement. 

Supplemental  Acts. 

By  Chap.  2,  Art.  29,  Sec.  892.  A  Creditor's  Action  on  a  Recognizance  of 
special  bail  must  be  brought  within  two  years  after  final  judgment  against  the 
principal. 

By  Chap.  2,  Art.  41,  Sec.  1153.  A  Relator's  Action  for  his  Damages  must  be 
brought  within  one  year  after  the  judgment. 

By  Chap.  (),  Sec.  2766.  An  Action  to  Contest  the  Validity  of  a  Will  must 
be  brought  within  three  years  after  the  offer  of  probate. 

By  Chap.  89,  Sec.  7312.  An  Action  on  an  Indenture  of  apprenticeship  must 
be  brought  within  two  years  after  expiration  of  the  term  of  service. 


INDIAN   TERRITORY  —  IOWA.  JIJ 

INDIAN  TERRITORY. 

CARTER'S  STATUTES  (1899),  Chap.  45. 

Sec.  2938.  No  person  or  persons,  or  their  heirs,  shall  have,  sue,  or  maintain 
any  action  or  suit,  either  at  law  or  in  equity,  for  any  lands,  tenements,  or 
hereditaments,  but  within  seven  years  next  after  his,  her  or  their  right  to  com- 
mence, have  or  maintain  such  suit  shall  have  come,  fallen,  or  accrued;  and  all 
suits  either  at  law  or  in  equity,  for  the  recovery  of  any  lands,  tenements  or 
hereditaments,  shall  be  had  and  sued  within  seven  years  next  after  title  or  cause 
of  aciion  accrued,  and  no  time  after  said  seven  years  shall  have  passed:  Pro- 
vided, &c. 

Sec.  2939,  No  entry  on  lands  or  tenements  shall  be  deemed  sufficient  or  valid 
as  a  claim  unless  an  action  be  commenced  thereon  within  one  year  after  such 
entry,  and  within  seven  years  from  the  time  when  the  right  to  make  such  entry 
descended  or  accrued. 

Sec.  2941.  Five  Years.  —  For  the  recovery  of  lands  sold  at  judicial  sales. 

Sec.  2945.  Three  Years. — First.  Actions  founded  upon  any  contract  or  lia- 
bility, express  or  implied,  not  in  writing. 

Second.   Actions  for  trespass  upon  lands  or  for  libels. 

Third.   Actions  for  taking  or  injuring  any  goods  or  chattels. 

Sec.  2946.  One  Year.  — First.  Actions  for  criminal  conversation,  assault  and 
battery,  and  false  imprisonment. 

Second    Actions  for  words  spoken,  slandering  the  character  of  another. 

Third.   All  words  spoken  whereby  special  damages  are  sustained. 

Sec.  2947.  One  Year.  —  Against  officers,  for  escape. 

Sec.  2948.  Two  Years.  —  Against  sheriffs  or  coroners,  for  misconduct,  except 
for  escapes. 

Sec.  2949.  Two  Years.  —  Actions  upon  penal  statutes. 

Sec.  2950.  Five  Years.  — Actions  upon  promissory  notes,  and  other  instru- 
ments in  writing,  not  under  seal. 

Sec.  2951.  Ten  Years.  — Actions  on  writings  under  seal. 

Sec.  2954.  Ten  Years.  —  Actions  on  judgments  and  decrees. 

Sec.  2955.  Other  actions  —  five  years. 


IOWA. 

2  McCLAIN'S   REVISED  CODE  AND  STATUTES,  1888,  Title  17,  Chap.  2. 

Sec.  2529.  Period  of. — The  following  actions  may  be  brought  within  the 
times  herein  limited  respectively  after  their  causes  accrue  and  not  afterwards, 
except  when  otherwise  specially  declared:  — 

1.  Two  years. — Actions  founded  on  injuries  to  the  person  or  reputation, 
whether  based  on  contract  or  tort,  or  for  a  statute  penalty,  within  two  years; 
2.  Actions  to  enforce  a  mechanic's  lien,  within  two  years  from  the  time  of 
filing  the  statement  in  the  clerk's  office. 


718  STATUTES   OF   LIMITATION. 

3.  Three  Years.  —  Those  against  a  sheriff  or  other  public  officer,  growing  out 
of  a  liability  incurred  by  the  doing  of  an  act  in  an  official  capacity  or  by  the 
omission  of  an  official  duty,  including  the  non-payment  of  money  collected  on 
execution,  vvilhin  three  years. 

4.  Five  Years.  —  Those  founded  on  unwritten  contracts,  those  brought  for 
injuries  to  property,  or  for  relief  on  the  ground  of  fraud  in  cases  heretofore 
solely  cognizable  in  a  court  of  chancery,  and  all  other  actions  not  otherwise 
provided  for  in  this  respect,  within  five  year  s. 

5.  Ten  Years. — Those  founded  on  written  contracts,  on  judgments  of  any 
courts,  except  those  courts  provided  for  in  the  next  section  [subdivision]  and 
those  brought  for  the  recovery  of  real  property,  within  ten  years. 

6.  Twenty  Years.  —  Those  founded  on  a  judgment  of  a  court  of  record, 
whether  of  this  or  of  any  other  of  the  United  States,  or  of  the  federal  courts  of 
the  United  States,  within  twenty  years. 

Sec.  2530.  Fraud.  Mistake.  Trespass.  —  In  actions  for  relief  on  the  ground 
of  fraud  or  mistake,  and  in  actions  for  trespass  to  property,  the  cause  of  action 
shall  not  be  deemed  to  have  accrued  until  the  fraud,  mistake,  or  trespass  com- 
plained of  shall  have  been  discovered  by  the  party  aggrieved. 

Sec.  2531.  Open  Account. — Where  there  is  a  continuous  open  current 
account,  the  cause  of  action  shall  be  deemed  to  have  accrued  on  the  date  of  the 
last  item  therein,  as  proved  on  the  trial. 

Sec.  2532.  Commencement  of  Action.  —  The  delivery  of  the  original  notice  to 
the  sheriff  of  the  proper  county  with  intent  that  it  be  served  immediately, 
which  intent  shall  be  presumed  unless  the  contrary  appears,  or  the  actual 
service  of  that  notice  by  another  person,  is  a  commencement  of  the  action. 

Sec.  2537.  Failure  of  Action.  —  If,  after  the  commencement  of  an  action,  the 
plaintiff  fail  therein  for  any  cause  except  negligence  in  its  prosecution,  and  a 
new  suit  be  brought  within  six  months  thereafter,  the  second  suit  shall,  for  the 
purposes  herein  contemplated,  be  deemed  a  continuation  of  the  first. 

Sec.  253S.  Bank-bills.  —  The  above  limitations  and  provisions  shall  not  apply 
to  evidences  of  debt  intended  to  circulate  as  money,  but  shall,  in  other  respects, 
be  applicable  to  all  actions  brought  by  or  against  all  bodies  corporate  and 
politic,  except  when  otherwise  expressly  declared. 

Sec.  2539.  Admission  in  Writing.  —  Causes  of  action  founded  on  contract  are 
revived  by  »n  admission  that  the  debt  is  unpaid  as  well  as  by  a  new  promise  to 
pay  the  same.  But  such  admission  or  new  promise  must  be  in  writing,  signed 
by  the  party  to  be  charged  thereby. 

Sec.  2540.  Counterclaim.  —  A  counterclaim  may  be  pleaded  as  a  defense  to 
any  cause  of  action,  notwithstanding  the  same  is  barred  by  the  provisions  of 
this  chapter,  if  such  counterclaim  so  pleaded  was  the  property  of  the  party 
pleading  it  at  the  time  it  became  barred,  and  the  same  was  not  barred  at  the 
time  the  claim  sued  on  originated;  but  no  judgment  thereon  except  for  costs 
can  be  rendered  in  favor  of  the  party  so  pleading  the  same. 

Sec.  2541.  Injunction  or  Statutory  Prohibition.  —  When  the  commencement 
of  an  action  shall  be  stayed  by  injunction  or  statutory  prohibition,  the  time  of 
the  '  ontinuance  of  such  injunction  or  prohibition  shall  not  be  part  of  the  time 
limited  for  the  commencement  of  the  action. 

Sec.  2542.  School  Fund.  —  The  provisions  of  this  chapter  shall  not  be 
applicable  to  any  action  brought  on  any  contract  for  any  part  of  the  school 
fund. 


KANSAS.  719 

Title  6,  Chap.  2. 

Sec.  902.  Action  to  recover  Land  sold  for  Taxes.  —  No  action  for  the  recovery 
of  real  property  sold  for  ihe  non-payment  of  taxes  shall  lie  unless  the  same  be 
brought  within  five  years  after  the  treasurer's  deed  is  executed  and  recorded  as 
above  provided;  provided,  that  where  the  owner  of  such  real  properly  sold 
as  aforesaid,  shall,  at  the  time  of  such  sale,  be  a  minor  or  insane,  or  convict  in 
the  penitentiary,  five  years  after  such  disability  shall  be  removed  shall  be 
allowed  such  person,  his  heirs,  or  legal  representatives  to  bring  their  action. 

Title  15,  Chap.  5. 

Sec.  2265.  Action  to  contest  Guardian's  Sale  of  Lands.  —  No  person  can 
question  the  validity  of  such  sale  after  the  lapse  of  five  years  from  the  time  it 
was  made. 

Title  16,  Chap.  3. 

Sec.  2401.  No  action  for  the  recovery  of  any  real  estate  sold  by  an  executor 
can  be  sustained  by  any  person  claiming  under  the  deceased,  unless  brought 
within  five  years  next  after  the  sale. 


KANSAS. 

GENERAL  STATUTES,  1899,  by  DASSLER,  Chap.  80,  Art.  3. 

Sec.  16.  (4260.)  Limitation  of  Action  for  Recovery  of  Real  Property.  — 
Actions  for  the  recovery  of  real  property,  or  for  the  determination  of  any 
adverse  right  or  interest  therein,  can  only  be  brought  within  the  periods  herein- 
after prescribed  after  the  cause  of  action  shall  have  accrued,  and  at  no  time 
thereafter: 

First.  An  action  for  the  recovery  of  real  property  sold  on  execution,  brought 
by  the  execution  debtor,  his  heirs,  or  any  person  claiming  under  him,  by  title 
acquired  afler  the  date  of  the  judgment,  within  five  years  after  the  date  of  the 
recording  of  the  deed  made  in  pursuance  of  the  sale. 

Second.  An  action  for  the  recovery  of  real  property  sold  by  executors, 
administrators,  or  guardians,  upon  an  order  or  judgment  of  a  court  directing 
such  sale,  brought  by  the  heirs  or  devisees  of  the  deceased  person,  or  the  ward 
or  his  guardian,  or  any  person  claiming  under  any  or  either  of  them,  by  title 
acquired  after  the  date  of  the  judgment  or  order,  within  five  years  after  the  date 
of  the  recording  of  the  deed  made  in  pursuance  of  the  sale. 

Third.  An  action  for  the  recovery  of  real  property  sold  for  taxes,  within  two 
years  after  the  date  of  the  recording  of  the  tax  deed. 

Fourth.  An  action  for  the  recovery  of  real  property  not  hereinbefore  provided 
for,  within  fifteen  years. 

Fifth.  An  action  for  the  forcible  entry  and  detention,  or  forcible  detention 
only,  of  real  property,  within  two  years. 

Sec.  18.  (4262.)  Other  Actions.  —  Civil  actions  other  than  for  the  recovery  of 
real  property  can  only  be  brought  within  the  following  periods  after  the  cause 
of  action  shall  have  accrued,  and  not  afterwards:  — 


720  STATUTES   OF   LIMITATION. 

First,  Wilhin  five  years:  An  action  upon  any  agreement,  contract,  or  promise 
in  writing. 

Second,  Within  three  years:  An  action  upon  a  contract,  not  in  writing,  express 
or  implied;  an  action  upon  a  liability  created  by  statute,  other  than  a  farfeiture 
or  penalty. 

Third,  Within  two  years-  An  action  for  trespass  upon  real  property;  an 
action  for  taking,  detaining  or  injuring  personal  property,  including  actions  for 
the  specific  recovery  of  personal  property;  an  action  for  injury  to  the  rights  of 
another,  notarising  on  contract,  and  not  hereinafter  enumerated;  and  action 
for  relief  on  the  ground  of  fraud.  The  cause  of  action  in  such  case  shall  not  be 
deemed  to  have  accrued  until  the  discovery  of  the  fraud. 

Fourth,  Within  one  year:  An  action  for  libel,  slander,  assault,  battery, 
malicious  prosecution,  or  false  imprisonment;  an  action  upon  a  statute  for  a 
penalty  or  forfeiture,  except  where  the  statute  imposing  it  prescribes  a  different 
limitation. 

Fifth.  An  action  upon  the  official  bond  or  undertaking  of  an  executor, 
administrator,  guardian,  sheriff,  or  any  other  officer,  or  upon  the  bond  or  under- 
taking  given  in  attachment,  injunction,  arrest,  or  in  any  case  whatever  required 
by  statute,  can  only  be  brought  within  Jive  years  after  the  cause  of  action  shall 
have  accrued. 

Sixth,  An  action  for  relief,  not  hereinbefore  provided  for,  can  only  be  brought 
within  five  years  after  the  cause  of  action  shall  have  accrued. 

Seventh,  Any  agreement  for  a  different  time  for  the  commencement  of  actions 
from  the  times  in  this  act  provided  shall  be  null  and  void  as  to  such  agreement. 

Sec.  20.  (4264.)  Commencement  of  Action.  —  An  action  shall  be  deemed  com- 
menced within  the  meaning  of  this  article,  as  to  each  defendant,  at  the  date  of 
the  summons  which  is  served  on  him,  or  on  a  co-defendant  who  is  a  joint  con- 
tractor, or  otherwise  united  in  interest  with  him.  Where  service  by  publication 
is  proper,  the  action  shall  be  deemed  commenced  at  the  date  of  the  first  publi- 
cation. An  attempt  to  commence  an  action  shall  be  deemed  equivalent  to  the 
commencement  thereof  within  the  meaning  of  this  article  when  the  party  faith- 
fully, properly  and  diligently  endeavors  to  procure  a  service;  but  such  attempt 
must  be  followed  by  the  first  publication  or  service  of  the  summons  wilhin 
sixty  days. 

Sec.  22.  (4266.)  Barred  in  Other  State,  barred  here.  —  Where  the  cause  of 
action  has  arisen  in  another  State  or  country,  between  non-residents  of  this 
State,  and  by  the  laws  of  the  State  or  countr>  where  the  cause  of  action  arose 
an  action  cannot  be  maintained  thereon  by  reason  of  lapse  of  time;  no  action 
[can  be]  maintained  thereon  in  this  State;  [and  no  action  shall  be  maintained 
in  this  State  on  any  judgment  or  decree  rendered  in  another  State  or  country 
against  a  resident  of  this  Slate,  where  the  cause  of  action  upon  which  said  judg- 
ment or  decree  was  rendered  could  not  have  been  maintained  in  this  State  at 
the  time  the  action  thereon  was  commenced  in  such  other  State  or  country,  by 
reason  of  lapse  of  time.1] 

Sec.  23  (4267.)  New  action  may  be  commenced,  when.  —  If  any  action  be 
commenced  within  due  time,  and  a  judgment  thereon  for  the  plaintiff  be 
reversed,  or  if  the  plaintiff  fail  in  such  action  otherwise  than  upon  the  merits. 

amendment  took  effect  .May  12,  1S70,  and  was  held  to  be  void  by  the  Supreme  Court  in 

1    iim.  1  ,  Kan.  277. 


KENTUCKY.  721 

and  the  time  limited  for  the  same  shall  have  expired,  the  plaintiff,  or,  if  he  die 
and  the  cause  of  action  survive,  his  representatives,  may  commence  a  new 
action  within  one  year  after  the  reversal  or  failure. 

Sec.  24.  (4268.)  Effect  of  Payment  or  Acknowledgment.  —  In  any  case 
founded  on  contract,  when  any  part  of  the  principal  or  interest  shall  have  been 
pnid,  or  an  acknowledgment  of  an  existing  liability,  debt,  or  claim,  or  any 
promise  to  pay  the  same,  shall  have  been  made,  an  action  may  be  brought  in 
such  case  within  the  period  prescribed  for  the  same,  after  such  payment, 
acknowledgment,  or  promise;  but  such  acknowledgment  or  promise  must  be 
in  writing,  signed  by  the  party  to  be  charged  thereby. 

Sec.  25.  (4269.)  Effect  of  Bar  —  When  a  right  of  action  is  barred  by  the 
provisions  of  any  statute,  it  shall  be  unavailable  either  as  a  cause  of  action  or 
ground  of  defense. 

Chapter  37,  Art.  5. 

2794.  Sec.  106.  Action  against  Executors.  —  No  executor  or  adminislrator, 
after  having  given  notice  of  his  appointment  as  provided  in  this  act,  shall  be 
held  to  answer  to  the  suit  of  any  creditor  of  the  deceased  unless  it  be  com- 
menced within  three  years  from  the  time  of  his  giving  bond. 

Chapter  49,  Art.  2. 

3244.  Sec.  7.  Indian  Lands.  —  Three  years'  quiet,  undisturbed,  actual  pos- 
session of  any  such  lands  by  any  purchaser  thereof,  in  good  faith  as  aforesaid, 
under  color  of  title,  shall  be  a  complete  bar  to  anv  action  for  the  recovery  of 
said  lands  by  the  holder  of  any  adverse  title  to  the  same,  and  such  possession 
shall  be  deemed  to  vest  in  the  possessor  a  full  and  complete  title  to  the  same  in 
fee  simple. 

Chapter  107,  Art.  20. 

7338.  Sec.  141.  Action  to  Recover  Land  Sold  for  Taxes.  —  Any  suit  or  pro- 
ceeding against  the  tax  purchaser,  his  heirs  or  assigns,  for  the  recovery  of  lands 
sold  for  taxes,  or  lo  defeat  or  avoid  a  sale  or  conveyance  of  lands  for  taxes, 
except  in  cases  where  the  taxes  have  been  paid  or  the  land  redeemed  as  pro- 
vided by  law,  shall  be  commenced  within  five  years,  from  the  time  of  recording 
the  tax  deed,  and  not  thereafter. 


KENTUCKY. 

GENERAL  STATUTES,  1899.     (Carroll's  2D  ed.)  Chap.  80(71.) 

Limitation  of  Actions. 

Art.    I.  —  Actions  for  the  Recovery  of  Real  Estate. 

Sec.  2505.  Limitation  of  Fifteen  Years.  —  An  action  for  the  recovery  of  real 
property  can  only  be  brought  within  fifteen  years  after  the  right  to  institute  it 
first  accrued  to  the  plaintiff,  or  to  the  person  through  whom  he  claims. 

Sec.  2508.  Thirty  Years  Utmost  Limit.  —  The  period  within  which  an  action 
for  the  recovery  of  real  property  may  be  brought  shall  not  in  any  case  be 
■  extended  beyond  thirty  years  from  the  time  at  which  the  right  to  bring  the 
[stats,  of  lim. — 46.] 


722  STATUTES   OF   LIMITATION. 

action  first  accrued  to  the  plaintiff,  or  the  person  through  whom  he  claims,  by- 
reason  of  any  death  or  the  existence  or  continuance  of  any  disability  whatever. 
Sec.  2509.   Claim  does  not  Preserve  Right.  —  No  continual  claim  upon  or  near 
real  property  shall  preserve  a  right  to  bring  an  action. 

Art.  II. — Possession  of  Seven  Years,  with  Title. 
Sec.  2513.  Occupancy  for  Seven  Years  with  Record  Title.  —  No  action  at  law 
or  in  equity  shall  be  brought  under  or  by  virtue  of  an  adverse,  interfering  entry, 
survey,  or  patent,  to  recover  the  title  or  possession  of  land  from  an  occupant 
where  he,  or  the  person  under  whom  he  claims,  has  a  connected  title  thereto  in 
law  or  equity,  deducible  of  record  from  the  Commonwealth,  and  has  or  shall 
have  had  an  actual  occupancy  of  the  same  by  settlement  thereon,  under  such 
title,  for  seven  years  before  the  commencement  of  the  action;  and  such  posses- 
sion of  land  shall  bar  and  toll  the  right  of  entry  into  such  land  by  any  person, 
under  an  adverse  title  or  claim,  and  such  possession  as  will  bar  the  right  to 
recover  the  same  shall  vest  the  title  in  the  occupant,  or  his  vendee.  This  lim- 
itation shall  not  apply  to  a  person  who  is  an  infant,  a  married  woman,  of 
unsound  mind,  or  out  of  the  United  States  in  the  employment  of  the  United 
States  or  of  this  State,  at  the  time  the  cause  of  action  accrued,  nor  until  seven 
years  after  the  removal  of  such  disability;  but  the  disability  of  one  of  several 
claimants  shall  save  only  his  own  right,  and  not  that  of  another. 

Art.   III.  —  Actions  other  than  for  Real  Estate. 

Sec.  2514.  Limitation  to  Actions  other  than  for  Real  Estate;  when  fifteen 
years.  —  Civil  actions,  other  than  those  for  the  recovery  of  real  property,  shall 
be  commenced  within  the  following  periods  after  the  cause  of  action  has 
accrued,  and  not  after:  An  action  upon  a  judgment  or  decree  of  any  court  of 
this  State  or  of  the  United  States,  or  of  any  State  or  Territory  thereof,  the 
period  to  be  computed  from  the  date  of  the  last  execution  thereon;  an  action 
or  suit  upon  a  recognizance,  bond,  or  written  contract;  an  action  upon  the 
official  bond  of  a  sheriff,  marshal,  sergeant,  clerk,  constable,  or  any  other  public 
officer,  or  any  commissioner,  receiver,  curator,  personal  representative, 
guardian,  committee,  or  trustee  appointed  by  a  court  or  authority  of  law;  an 
action  upon  an  appeal  bond,  or  bond  given  on  a  supersedeas,  attachment, 
injunction,  order  of  arrest,  or  for  the  delivery  of  property,  or  for  the  forthcom- 
ing of  property,  or  to  obey  or  perform  an  order  or  judgment  of  court  in  an 
action,  or  upon  a  bond  for  costs,  or  any  other  bond  taken  by  a  court  or  judge, 
or  by  an  officer  pursuant  to  the  directions  of  a  court  or  judge,  in  an  action,  or 
after  judgment  or  decree,  or  upon  a  replevin,  sale,  or  delivery  bond  taken  under 
an  execution,  decree,  or  warrant  of  distress,  upon  an  indemnifying  bond  taken 
under  a  statute,  or  upon  a  bond  to  suspend  a  proceeding  or  sale  under  execu- 
tion, distress  warrant,  order,  or  decree,  or  other  judicial  proceeding,  or  upon  a 
bond  or  obligation  for  the  payment  of  money  or  property,  or  for  the  perform- 
ance of  any  undertaking,  —  shall  be  commenced  within  fifteen  years  after  the 
cause  of  action  first  accrued. 

Sec.  2515.  When  Five  Years.  —  An  action  upon  a  contract  not  in  writing, 
signed  by  the  partv,  express  or  implied;  an  action  upon  a  liabilitv  created  by 
statute,  when  no  other  time  is  fixed  by  the  statute  creating  the  liability;  an 
action  for  a  penalty  or  forfeiture   when   no  time  is  fixed   by  the  statute  or  law 


KENTUCKY.  723 

prescribing  the  same;  an  action  for  trespass  on  real  or  personal  property;  an 
action  for  the  profils  of  or  damages  for  withholding  real  or  personal  pioperty; 
actions  for  the  taking,  detaining,  or  injuring  personal  property,  including 
actions  for  the  special  recovery  thereof;  an  action  for  the  injury  to  the  rights 
of  the  plaintiff,  not  arising  on  contract,  and  not  hereinafter  enumerated;  an 
action  upon  a  bill  of  exchange,  check,  draft,  or  order,  or  any  indorsement 
thereof,  or  upon  a  promissory  note,  placed  upon  the  footing  of  a  bill  of 
exchange,  an  action  to  enforce  the  liability  of  a  steamboat  or  other  vessel;  an 
action  upon  an  account  concerning  the  trade  of  merchandise  between  merchant 
and  merchant,  or  their  agents;  an  action  for  relief  on  the  ground  of  fraud  or 
mistake,  and  an  action  to  enforce  the  liability  of  bail,  shall  be  commenced 
within  five  years  next  after  the  cause  of  action  accrued.     (See  also  Sec.  2519.) 

Sec.  2516.  When  One  Year. —  An  action  for  an  injury  to  the  person  of  the 
plaintiff,  or  of  his  wife,  child,  ward,  apprentice,  or  servant,  or  for  injuries  to 
person,  cattle,  or  stock  by  railroads,  or  by  any  company  or  corporation;  an 
action  for  a  malicious  prosecution,  conspiracy,  arrest,  seduction,  criminal  con- 
versation, or  breach  of  promise  of  marriage;  an  action  for  libel  or  slander;  an 
action  for  the  escape  of  a  prisoner  arrested  or  imprisoned  on  civil  process,  shall 
be  commenced  within  one  year  next  after  the  cause  of  action  accrued,  and  not 
thereafter. 

Sec.  2517.  Usury,  One  Year.  —  And  no  action  shall  be  prosecuted  in  any  of 
the  courts  of  this  Commonwealth,  for  the  recovery  of  usury  theretofore  paid,  for 
the  loan  or  forbearance  of  money,  or  other  thing  against  the  loanee  or  forbearee, 
or  assignee,  or  either,  unless  the  same  shall  have  been  instituted  within  one 
year  next  after  the  payment  thereof;  and  this  limitation  shall  apply  to  all  pay- 
ments made  on  all  demands,  whether  evidenced  in  writing  or  existing  in  parol. 

Sec.  2518.  Merchants'  Accounts.  Two  Years. 

Sec.  2519.  Fraud  or  Mistake  —  Limit  Ten  Years.  —  In  actions  for  relief  for 
fraud  or  mistake,  or  damages  for  either,  the  cause  of  action  shall  not  be 
deemed  to  have  accrued  until  the  discovery  of  the  fraud  or  mistake;  but  no 
such  action  shall  be  brought  ten  years  after  the  time  of  making  the  contract  or 
the  perpetration  of  the  fraud. 

Sec.  2520.  Account  between  Merchant  and  Merchant.  —  In  an  action  to 
recover  a  balance  due  upon  a  mulual  open  and  current  account,  concerning  the 
trade  of  merchandise  between  merchant  and  merchant,  or  their  agents,  where 
there  have  been  reciprocal  demands  between  the  parties,  the  cause  of  action  is 
deemed  to  have  accrued  from  the  time  of  the  last  item  proved  in  the  account 
claimed,  or  proved  to  be  chargeable  on  the  adverse  side.     (See  also  sec.  2518.) 

Sec.  2521.  Rights  of  Infants  against  Fiduciaries. 

Sec.  2522.  Actions  not  otherwise  provided  for.  —  An  action  for  relief,  not 
provided  for  in  this  or  some  other  chapter,  can  only  be  commenced  within  ten 
years  next  after  the  cause  of  action  accrued. 

Sec.  2523.  State.  —  The  limitations  prescribed  in  this  chapter  shall  apply  to 
actions  brought  by  or  in  the  name  of  the  Commonwealth,  in  the  same  manner 
as  to  actions  by  private  persons,  except  where  a  different  time  is  prescribed  by 
some  other  chapter  in  this  revision. 

Art.    IV.  —  General  Provisions. 
Sec.  2524.  When  Action  is  deemed  to  have  been  commenced.  —  An  action 
shall  be  deemed  to  have  been  commenced  at  the  date  of   the  first  summons  or 


724  STATUTES   OF   LIMITATION. 

process  issued  in  good  faith  from  the  courl  or  tribunal  having  jurisdiction  of 
the  cause  of  action. 

Sec.  2529.  Personal  Representative  exempt  from  Suit  after  Seven  Years, 
when.  —  No  action  against  a  personal  representative,  who  has  settled  his 
accounts,  and  made  distribution  of  ihe  whole  assets  in  his  hands,  on  any  judg- 
ment or  decree  against  such  testator  or  intestate,  or  on  any  contract  made  by 
him,  shall  be  brought  after  the  expiration  of  seven  years  after  the  qualification 
of  such  representative. 

Sec.  2530.  Action  accruing  against  a  Decedent  in  his  Lifetime  barred  as 
against  his  Heir,  &c,  when.  —  No  action  upon  a  cause  which  accrued  against 
a  deceased  person  in  his  lifetime  shall,  when  his  estate  has  been  distributed  and 
divided,  be  brought  against  his  heirs  or  devisees,  jointly  with  his  personal 
representative,  after  the  expiration  of  seven  years  from  his  death. 

Sec.  2534.  Effect  of  War.  —  Where  the  plaintiff  is  an  alien,  and  a  subject  or 
citizen  of  a  country  at  war  with  the  United  States,  the  lime  of  the  continuance 
of  the  war  is  not  to  be  computed  as  part  of  the  time  limited  for  the  commence- 
ment of  the  action. 

Sec.  2535.  Injunction.  —  When  the  collection  of  a  judgment  or  ihe  commence- 
ment of  an  action  is  stayed  by  injunction,  the  time  of  the  continuance  of  the 
injunction  is  not  part  of  the  period  limited  for  the  collection  of  the  judgment  or 
the  commencement  of  the  action. 

Sec.  2539.  Mortgagee  of  Real  Property  in  Adverse  Possession  for  Fifteen 
Years,  protected.  —  After  a  mortgagee  of  real  properly,  or  any  person  claiming 
under  him,  has  had  fifteen  years'  continued  adverse  possession,  no  action  shall 
be  brought  by  the  mortgagor,  or  any  one  claiming  under  him,  to  redeem  it. 

Sec.  254.0.  If  of  Personal  Property,  then  Five  Years.  —  The  provision  of  the 
last  section  shall  apply  in  case  of  a  mortgage  of  personal  property,  with  the 
difference  that  the  period  within  which  the  action  to  redeem  may  be  brought 
shall  be  five  years. 

Sec.  2541.  Foreign  Judgment  barred  at  Home,  barred  here,  except.  —  When, 
by  the  laws  of  any  other  State  or  country,  an  action  upon  a  judgment  or  decree 
rendered  in  such  State  or  country  cannot  be  maintained  there  by  reason  of  the 
lapse  of  time,  and  such  judgment  or  decree  is  incapable  of  being  otherwise 
enforced  there,  an  action  upon  the  same  cannot  be  maintained  in  this  State, 
except  in  favor  of  a  resident  thereof,  who  has  had  the  cause  of  action  from  the 
time  it  accrued. 

Sec.  2542.  Cause  of  Action  barred  in  State  where  it  originated.  —  When  a 
cause  of  action  has  arisen  in  another  State  or  country,  between  residents  of 
such  State  or  country,  or  between  them  and  residents  of  another  State  or 
country,  and  by  the  laws  of  the  State  or  country  where  the  cause  of  action 
accrued  an  action  cannot  be  maintained  theteon  by  reason  of  the  lapse  of  time, 
no  action  can  be  maintained  thereon  in  this  State. 

Sec.  2543.  Trusts  and  Suits  by  Vendee  in  Possession  to  Obtain  a  Title.  —  The 
provisions  of  this  chapter  shall  not  apply  in  the  case  of  a  continuing  and  sub- 
sisting trust,  nor  to  an  action  by  a  vendee  of  real  property  in  the  possession 
thereof,  10  obtain  a  conveyance. 

Se<  .  2544.  Injunction  or  other  Restraint.  —  In  all  cases  where  the  doing  of  an 
act  necessary  to  save  any  right  or  benefit  is  restrained  or  suspended  by  injunc- 
tion or  other  lawful  restraint,  vacancy  in  office,  absence  of  an  officer,  or  his 
refusal   to  act,  the  time  covered  by  the  injunction,  restraint,  vacancy,  absence, 


LOUISIANA.  72$ 

or  refusal   to  act  shall   not  be   estimated   in   the  application  of  any  statute  of 
limitations. 

Sec.  2545.  Dismissal  of  Action.  —  When  an  action  has  been  or  shall  be  com- 
menced in  due  time,  and  in  good  faith,  in  any  court  of  this  Commonwealth, 
and  the  defendants,  or  either  of  them,  have  01  shall  make  defense,  and  it  shall 
be  adjudged  that  such  court  had  or  has  no  jurisdiction  of  the  action,  the  plain- 
tiff or  his  representative  may,  within  three  months  from  the  time  of  such  judg- 
ment, commence  a  new  action  in  the  proper  court,  and  the  time  between  the 
commencement  of  the  first  and  last  action  shall  not  be  counted  in  applying  the 
limitations. 


LOUISIANA. 

[2  Merrick's  Revised  Civil  Code,   1900.] 
Chap.    3.  —  Of  Prescription. 

Sec.  3.     Of  the  Prescription  which  Operates  a  Release  from  Debt. 

Art.  3528  [3494].  Liberative  Prescription. — -The  prescription  which  operates 
a  release  from  debts,  discharges  the  debtor  by  the  mere  silence  of  the  creditor 
during  the  time  fixed  by  law  from  all  actions  reai  or  personal  which  might  be 
brought  against  him. 

Art.  3529  [3495].  As  to  Real  Rights.  —  This  prescription  has  also  the  effect  of 
releasing  the  owner  of  an  estate  from  every  species  of  real  rights,  to  which  the 
property  may  have  been  subject,  if  the  person  in  possession  ol  the  right  has  not 
exercised  it  during  the  time  required  by  law. 

Art.  3530  [3496].  Right  of  Debtor  to  Claim.  —  To  enable  the  debtor  to  claim 
the  benefit  of  this  prescription,  it  is  not  necessary  that  he  should  produce  any 
titles,  or  hold  in  good  faith;  the  neglect  of  the  creditor  operates  the  prescription 
in  this  case. 

Art.  3531  [3497].  Term.  —  The  time  necessary  to  acquire  this  prescription  is 
longer  or  shorter,  according  to  the  different  species  of  debts  or  of  real  rights,  of 
which  it  produces  the  discharge  or  extinction. 

Art.  3532.  Pr?scription  on  Foreign  Contracts  or  Judgments.  —  Whenever  any 
contract  or  obligation  has  been  entered  into,  or  judgment  rendered,  between 
persons  who  reside  out  of  the  State  of  Louisiana,  and  to  be  paid  or  performed 
out  of  this  State,  and  such  contract,  obligation  or  judgment  is  barred  by  pre" 
scription  or  the  statute  of  limitations  of  the  place  where  the  contract  or  obliga- 
tion is  to  be  performed  or  judgment  executed,  the  same  shall  be  considered  and 
held  as  barred  by  prescription  in  Louisiana,  upon  the  debtor  who  is  thus  dis- 
charged subsequently  coming  into  this  State. 

Art.  3533  [34)8].  Special  Prescription.  —  Besides  the  different  prescriptions 
of  actions,  which  are  mentioned  in  other  parts  of  this  Code,  others  exist  which 
are  the  subject  of  the  following  paragraphs. 

Sec.  1.     Of  the  Prescription  of  One  Year. 
Art.  3534  [3499].  One  Year's  Prescription.  —  The  following  actions  are  pre- 
scribed by  one  year:  — 
Justices,  Notaries  and  Constables.  —  That  of  j  ustices  of  the  peace  and  notaries, 


726  STATUTES    OF   LIMITATION. 

and  persons  performing  their  duties,  as  well  as  that  of  constables,  for  the  fees 
and  emoluments  which  are  due  to  them  in  their  official  capacity. 

Teachers  by  the  Month.  —  That  of  masters  and  instructors  in  the  arts  and 
sciences,  for  lessons  which  they  give  by  the  month. 

Innkeepers,  etc.  —  That  of  innkeepers  and  such  others,  on  account  of  lodging 
and  board  which  they  furnish. 

Retail  Liquor  Dealers.  —  That  of  retailers  of  liquors,  who  sell  ardent  spirits 
in  less  quantities  than  one  quart. 

Laborers  and  Servants.  —  That  of  workmen,  laborers  and  servants,  for  the 
payment  of  their  wages. 

Ship  Freight;  Officers  and  Crew.  —  That  for  the  payment  of  the  freight  of 
ships  and  other  vessels,  the  wages  of  the  officers,  sailors  and  others  of  the  crew. 

Materials  and  Provisions  for  Ships.  —  That  for  the  supply  of  wood  and  other 
things  necessary  for  the  construction,  equipment  and  provisioning  of  ships  and 
other  vessels. 

Art.  3535  [3500].  Continuous  Accounts;  Interruption;  Voyage.  —  In  the 
cases  mentioned  in  the  preceding  article,  the  prescription  takes  place,  although 
there  may  have  been  a  regular  continuance  of  supplies,  or  of  labor  or  other 
service. 

It  only  ceases  from  the  time  when  there  has  been  an  account  acknowledged, 
a  note  or  bond  given,  or  a  suit  instituted.  However,  with  respect  to  the  wages 
of  officers,  sailors  and  others  of  the  crew  of  a  ship,  this  prescription  runs  only 
from  the  day  when  the  voyage  is  completed. 

Art.  3536  [3501].  Torts  ;  Claims  by  and  against  Vessels  ;  Possessory  Actions. 
—  The  following  actions  are  also  prescribed   by  one  year:  — 

That  for  injurious  words,  whether  verbal  or  written,  and  that  for  damages 
caused  by  animals,  01  resulting  from  offenses  or  quasi-offenses. 

That  which  a  possessor  may  institute,  to  have  himself  maintained  or  restored 
to  his  possession,  when  he  has  been  disturbed  or  evict  d. 

That  for  the  delivery  of  merchandise  or  other  effects,  shipped  on  board  any 
kind  of  vessel. 

That  for  damages  sustained  by  merchandise  on  board  ships,  or  which  may 
have  happened  by  ships  running  foul  of  each  other. 

Art.  3537  [3502].  Commencement  of  Prescription.  —  The  prescription  men- 
tioned in  the  preceding  article  runs:  — 

With  respect  to  the  merchandise  injured  and  not  delivered,  from  the  day  of 
the  arrival  of  the  vessel,  or  that  on  which  she  ought  to  have  arrived. 

And  in  other  cases  from  that  on  which  the  injurious  words,  disturbance  or 
damage  were  sustained. 

Sec.  2.     Of  the  Prescription  of  Three  Years. 

Art.  3538  [3503].  Three  Years'  Prescription.  —  The  following  actions  are 
prescribed  by  three  years:  — 

Rent,  Annuities,  Alimony.  —  That  for  arrearages  of  rent  charge,  annuities 
and  alimony,  or  of  the  hire  of  movables  and  immovables. 

Money  Lent.  —  That  for  the  payment  of  money  lent. 

Overseers,  Clerks,  Teachers  by  the  Year  or  Quarter.  —  That  for  the  salaries 
of  overseers,  clerks,  secretaries,  and  of  teachers  of  the  sciences,  who  give  lessons 
by  the  year  or  quarter. 


LOUISIANA.  727 

Physicians,  Apothecaries,  etc.  —  That  of  physicians,  surgeons  and  apothe- 
caries, for  visits,  operations  and  medicines. 

Recorders,  Clerks,  Sheriffs,  Attorneys.  —  That  of  parish  recorders,  sheriffs, 
clerks,  and  attorneys,  for  their  fees  and  emoluments. 

Merchants'  Accounts.  —  That  on  the  accounts  of  merchants,  whether  selling 
for  wholesale  or  retail. 

Retailers  of  Provisions  or  Liquors.  —  That  on  the  accounts  of  retailers  of 
provisions,  and  that  of  retailers  of  liquors  who  do  not  sell  ardent  spirits  in  less 
quantities  than  a  quart. 

Open  Accounts.  —  That  on  all  other  open  accounts. 

This  prescription  only  ceases  from  the  time  there  has  been  an  account 
acknowledged,  in  writing,  a  note  or  bond  given  or  an  action  commenced. 

Art.  3539  [3504].  Against  Attorneys  for  Return  of  Papers.  —  The  action  of 
parties  against  their  attorneys  for  the  return  of  papers  delivered  to  them  for  the 
Interest  of  their  suits,  is  prescribed  also  by  three  years,  reckoning  from  the  day 
when  judgment  was  rendered  in  the  suit,  or  from  the  revocation  of  the  powers 
■  of  the  attorneys. 

Sec.  3.     Of  the  Prescription  of  Five  Years. 

Art.  3540  [3505].  Bills  and  Notes.  — Action  on  bills  of  exchange,  notes  pay- 
able to  order  or  bearer,  except  bank  notes,  those  on  all  effects  negotiable  or 
transferable  by  indorsement  or  delivery,  and  those  on  all  promissory  notes, 
whether  negotiable  or  otherwise,  are  prescribed  by  five  years'  reckoning  from 
the  day  when  the  engagements  were  payable. 

Art.  3541  [3506].  Minors  and  Interdicts.  —  The  prescription  mentioned  in  the 
preceding  article,  and  those  described  above  in  paragraphs  I.  and  II.,  run 
against  minors  and  interdicted  persons,  reserving,  however,  to  them  their 
.recourse  against  their  tutors  or  curators. 

They  run  also  against  persons  residing  out  of  the  State. 

Art.  3542  [3507].   The  following  actions  are  prescribed   by  five  years:  — 

Nullity  or  Rescission.  —  That  for  the  nullity  or  rescission  of  contracts,  testa- 
ments* or  other  acts. 

Reduction  of  Donations.  —  That  for  the  reduction  of  excessive  donations. 

Rescission  of  Partitions.  —  That  for  the  rescission  of  partitions  and  guarantee 
of  the  portions. 

Minors.  —  This  prescription  only  commences  against  minors  after  their 
majority. 

Art.  3543.  Informalities  in  Public  Sales.  —  All  informalities  connected  with 
or  growing  out  of  any  public  sale,  made  by  any  person  authorized  to  sell  at 
public  auction,  shall  be  prescribed  against  by  those  claiming  under  such  sale, 
after  the  lapse  of  five  years  from  the  time  of  making  it,  whether  against  minors, 
■married  women,  or  interdicted  persons. 

Sec.  4.     Of  the  Prescription  of  Ten  Years. 

Art.  3544  [3508].  Ten  Tears.  —  In  general,  all  personal  actions,  except  those 
before  enumerated,  are  prescribed  by  ten  years. 

Art.  3545  [3509].  Architect  or  Builder  in  Brick  or  Stone.  —  The  action 
against  an  undertaker  or  architect,  for  defect  or  construction  of  buildings  of 
brick  or  stone,  is  prescribed  by  ten  years. 


728  STATUTES   OF   LIMITATION. 

An.  3546  [3511].  Usufruct,  Use,  Servitudes.  —  The  righis  of  usufruct,  use 
and  habitation  and  servitudes  are  lost  by  non-use  for  ten  years. 

Art.  3547.  Judgments;  Revival  of.  —  All  judgments  for  money,  whether 
rendered  within  or  without  the  State,  shall  be  prescribed  by  the  lapse  of  ten 
years  from  the  rendition  of  such  judgments:  Provided,  however,  thai  any  paity 
interested  in  any  judgment  may  have  the  same  revived  at  any  time  before  it  is 
prescribed  by  having  a  citation  issued  according  to  law,  to  the  defendant  or  his 
representative,  from  the  court  which  rendered  the  judgment,  unless  the  defend- 
ant or  his  representative  show  good  cause  why  the  judgmtnt  should  not  be 
revived,  and  if  such  defendant  be  absent  and  not  represented,  the  court  may 
appoint  a  curator  ad  hoc  to  represent  him  in  the  proceedings,  upon  which  curator 
ad  hoc  the  citation  shall  be  served. 

Any  judgment,  revived  as  above  provided,  shall  continue  in  full  force  for  ten 
years  from  the  date  of  the  order  of  court  reviving  the  same,  and  any  judgment 
may  be  revived  as  often  as  the  party  interested  may  desire. 

Sec.  5.  Of  the  Prescription  of  Thirty  Years. 

Art.  354S  [3512].  Actions  for  Immovables  and  Entire  Estates.  —  All  actions 
for  immovaDle  property,  or  for  an  entire  estate,  as  a  succession,  are  prescribed 
by  thirty  years. 

Sec.  2810  (of  Rev  Laws  of  1897).  Absentees  and  Non-residents  placed  upon 
the  same  Footing  as  Residents. —  The  laws  of  prescription  now  existing, 
whereby  absentees  and  non-residents  of  the  State  are  entitled  to  longer  periods 
than  persons  present  or  residents  in  the  State,  before  prescription  can  be 
acquired  against  them,  are  abolished;  and  hereafter  absentees  or  non-residents 
of  the  State  are  to  stand  on  the  same  footing,  in  relation  to  the  laws  of  pre- 
scription, as  persons  present  or  residents  of  the  State:  Provided,  that  this  section 
shall  not  apply  to  any  prescription  of  one  year  or  less      (Acts  of  1848,  p.  60.) 


MAINE. 

REVISED  STATUTES,  1883.     Title  IX.,  Chap.  81. 

Limitation  of  Personal  Actions. 

Sec.  82.  Actions  barred  in  Six  Years.  —  First.  —  Actions  of  debt,  founded 
upon  a  contract  or  liability  not  under  seal,  except  such  as  are  brought  upon  a 
judgment  or  decree  of  some  court  of  record  of  the  United  States,  or  of  a  State> 
or  of  some  municipal  or  police  court,  trial  justice,  or  justice  of  the  peace  in  this 

State. 

Second.  Actions  upon  judgments  of  any  court,  not  a  court  of  record,  except 
municipal  and  police  courts,  trial  justices,  and  justices  of  the  peace  in  this  State. 

Third.   Actions  for  arrears  of  rent. 

Fourth.  Actions  of  assumpsit,  or  upon  the  case,  founded  on  any  contract  or 
liability,  express  or  implied. 

Fifth.  Actions  for  waste,  of  trespass  on  land,  and  of  trespass,  except  those 
for  assault  and  battery  and  false  imprisonment. 

Sixth.  Actions  of  replevin,  and  other  actions  for  taking,  detaining,  or  injur- 
ing goods  or  chattels. 


MAINE.  729 

Seventh.  All  other  actions  on  the  case,  except  for  slanderous  words  and  for 
libel. 

Sec.  83.  Actions  against  Sheriff.  —  Actions  for  escape  of  prisoners  commiited 
on  execution  shall  be  actions  on  the  case,  and  be  commenced  within  one  year 
after  the  cause  of  action  accrues;  but  actions  against  a  sheriff,  for  negligence 
or  misconduct  of  himself  or  his  deputies,  shall  be  commenced  within  four  years 
after  the  cause  of  action  accrues. 

Sec.  84.  Assault.  Libel.  False  Imprisonment.  —  Actions  of  assault  and 
baltery,  and  lor  false  imprisonment,  slander,  and  libel,  shall  be  commenced 
within  two  years  after  the  cause  of  action  accrues. 

Sec.  S5.  Scire  Facias.  —  No  scire  facias  shall  be  served  on  bail  unless  within 
one  year  after  judgment  was  rendered  against  the  principal;  nor  on  sureties  in 
recognizances  in  criminal  cases  unless  within  one  year  after  the  default  of  the 
principal;  nor  against  any  person  adjudged  trustee,  unless  within  one  year  from 
the  expiration  of  the  first  execution  against  the  principal  and  his  goods,  effects, 
and  credits  in  the  hands  of  the  trustee. 

Sec.  86.  Witnessed  Notes  and  Bank-bills.  —  The  foregoing  limitations  do  not 
apply  to  actions  on  promissory  notes,  signed  in  the  presence  of  an  attesting 
witness,  or  on  the  bills,  notes,  or  other  evidences  of  debt  issued  by  a  bank;  nor 
to  any  case  or  suit  limited  to  be  commenced  within  a  different  time. 

Sec.  87.  Mutual  and  Open  Accounts  Current.  —  In  actions  of  debt  or 
assumpsit  to  recover  the  balance  due,  where  there  have  been  mutual  dealings 
between  the  parties,  the  items  of  which  are  unsettled,  whether  kept  or  proved 
by  one  party  or  both,  the  cause  of  action  shall  be  deemed  to  accrue  at  the  time 
of  the  last  item  proved  in  such  account. 

Sec.  90.  General  Limiation  of  Twenty  Years.  —  Personal  actions  on  any 
contract,  not  otherwise  limited,  shall  be  brought  within  twenty  years  after  the 
cause  of  action  accrues. 

Sec.  94.  Suits  for  Penalties.  —  Actions  and  suits  for  any  penalty  or  forfeiture 
on  a  penal  statute,  brought  by  a  person  to  whom  the  penalty  or  forfeiture  is 
given  in  whole  or  in  part,  shall  be  commenced  within  one  year  after  the  com- 
mission of  the  offense;  and  if  no  person  so  prosecutes,  it  may  be  recovered  by 
suit,  indictment,  or  information,  in  the  name  and  for  the  use  of  the  State,  at 
any  time  within  two  years  aftet  the  commission  of  the  offense,  and  not 
afterwards. 

Sec.  96.  Limitation  in  Oases  of  Fraud.  —  If  a  person  liable  to  any  action 
mentioned  herein,  fraudulently  conceals  the  cause  thereof  from  the  person 
entitled  thereto,  or  if  a  fraud  is  committed  which  entitles  any  person  to  an 
action,  the  action  may  be  commenced  at  any  time  within  six  years  after  the  per- 
son entitled  thereto  shall  discover  that  he  has  just  cause  of  action. 

Sec.  101.  Presumption  of  Payment.  —  Every  judgment  and  decree  of  any 
court  of  record  of  the  United  States,  or  any  State,  or  of  a  trial  justice  or  justice 
of  the  peace  in  this  State,  shall  be  presumed  to  be  paid  and  satisfied  at  the  end 
of  twenty  years  after  any  duty  or  obligations  accrued  by  virtue  of  such  judg- 
ment or  decree. 

Sec.  102.  Set-offs. — All  the  provisions  hereof  respecting  limitations  shall 
apply  to  any  debt  or  contract  filed  in  set-off  by  the  defendant;  and  the  time  of 
such  limitation  of  such  debt  or  contract  shall  be  computed,  as  if  an  action  had 
been  commenced  therefor  at  the  time  when  the  plaintiff's  action  was  com- 
menced, unless  the  defendant  is  deprived  of  the   benefit  of   the  set-off  by  the 


730  STATUTES   OF   LIMITATION. 

nonsuit  or  other  act  of  the  plaintiff;  and  when  he  is  thus  defeated  of  a  judg- 
ment on  the  merits  of  such  debt  or  contract,  he  may  commence  an  action 
thereon  within  six  months  after  the  final  determination  of  the  suit  aforesaid. 

Sec.  103.  Absence  of  Defendant  from  the  State.  —  If  a  person  is  out  of  the 
State  when  a  cause  of  action  accrues  against  him,  the  action  may  be  commenced 
within  the  time  limited  therefor  after  he  comes  into  the  State;  and  if  a  person 
is  absent  from  and  resides  out  of  the  State  after  a  cause  of  action  has  accrued 
against  him,  the  time  of  his  absence  shall  not  De  taken  as  a  part  of  the  time 
limited  for  the  commencement  of  the  action.  But  no  action  shall  be  brought 
by  any  person  whose  cause  of  action  has  been  barred  by  the  laws  of  any  State, 
Territory,  or  country  while  all  the  parties  have  resided  therein.  (As  amended 
by  Acts  of  i8S5,  chap.  376.) 

Chap.  105. 
Limitation  of  Real  Actions,  and  Rights  of  Entry. 

Sec.  1.  Rights  cf  Entry  and  Action  barred  in  Twenty  Years.  —  No  person 
shall  commence  any  real  or  mixed  action  for  the  recovery  of  lands,  or  make  an 
entry  thereon,  unless  within  twenty  years  after  the  right  to  do  so  first  accrued; 
or  unless  within  twenty  years  after  he,  or  those  under  whom  he  claims,  were 
seized  or  possessed  of  the  premises;  except  as  hereinafter  provided. 

Sec.  2.  From  what  Time  Right  begins  to  run.  —  If  such  right  or  title  first 
accrued  to  an  ancestor,  predecessor,  or  other  person  under  whom  the  demand- 
ant claims,  said  twenty  years  shall  be  computed  from  the  time  when  the  right 
or  title  first  accrued  to  such  ancestor,  predecessor,  or  other  person. 

Sec.  3.  When  such  Right  Shall  be  deemed  to  accrue. 

Sec.  4.  Entry  for  Condition  broken.  —  The  preceding  clause  shall  not  pre- 
vent any  person  from  entering  when  so  entitled  by  reason  of  any  forfeiture  or 
breach  of  condition;  but  if  he  claims  under  such  a  title,  his  right  accrues  when 
the  forfeiture  was  incurred  or  the  condition  broken. 

Sec.  5.  Oases  not  specially  provided  for.  —  In  all  cases  not  otherwise  pro- 
vided for,  the  right  of  entry  accrues  when  the  claimant,  or  the  person  under 
whom  he  claims,  first  became  entitled  to  the  possession  of  the  premises  under 
the  title  on  which  the  entry  or  action  is  founded. 

Sec.  10.  What  constitutes  a  Disseisin.  —  To  constitute  a  disseisin,  or  such 
exclusive  and  adverse  possession  of  lands  as  to  bar  or  limit  the  right  of  the  true 
owner  thereof  to  recover  them,  such  lands  need  not  be  surrounded  with  fences 
or  rendered  inaccessible  by  water;  but  it  shall  be  sufficient,  if  the  possession, 
occupation,  and  improvement  are  open,  notorious,  and  comporting  with  the 
ordinary  management  of  a  farm;  although  that  part  of  the  same,  which  com- 
poses the  woodland  belonging  to  such  farm  and  used  therewith  as  a  wood  lot, 
is  not  so  enclosed. 

[Sec.  11,  limiting  to  twenty  years  Real  or  Mixed  Actions  by  the  State  was 
repealed  by  Chap.  368  of  the  Acts  of  1885.] 

Sees.  13.  14.  Right  of  Way,  or  other  Easement,  acquired  by  Adverse  U3e, 
twenty  years. 

Real  Actions. 

Sec.  15.  Actions  for  the  Recovery  of  Land  barred  in  Forty  Years.  —  No  real 

'•r  mixed  action,  for  the  recovery  of  any  lands,  shall    be   commenced  or  main- 

:    ag  linsl   any  person  in  possession  thereof,  when   such   person   or  those 

under  whom  he  claims  have  been  in  actual  possession  for  more  than  forty  years, 


MARYLAND.  73 1 

claiming  to  hold  them  by  adverse,  open,   peaceable,   notorious,  and  exclusive 
possession,  in  their  own  right. 

[Chap.  229  of  the  Acts  of  1897,  adds  to  this  chapter:  Sec.  16,  by  which  a 
right  of  way  or  other  easement  is  not  extinguished  by  adverse  obstruction 
unless  continued  for  twenty  years  and  notice  given.  And  Sec.  17  provides  how 
such  notice  is  to  be  given.] 


MARYLAND. 


REVISED  CODE,  18S8.     Art.  57. 
Limitation  of  Actions. 

Sec.  1.  Within  what  Times  Actions  must  be  commenced.  —  All  actions  of 
account,  actions  of  assumpsit,  or  on  the  case,  actions  of  debt  on  simple  contract, 
or  for  rent  in  arrear,  detinue,  or  replevin,  all  actions  for  trespass,  for  injuries 
to  real  or  personal  property,  all  actions  for  illegal  arrest,  false  imprisonment, 
or  violation  of  the  twenty  third,  twenty-sixth,  thirty-first,  and  thirty-second 
articles  of  the  Declaration  of  Rights,  or  any  of  them,  or  of  any  provisions  of 
this  code  touching  the  writ  of  habeas  corpus,  or  proceedings  thereunder,  and  all 
actions,  whether  of  debt,  ejectment,  or  of  any  other  description  whatsoever, 
brought  to  recover  rent  in  arrear,  reserved  under  any  form  of  lease,  whether 
for  ninety-nine  years,  renewable  forever,  or  for  a  greater  or  lesser  period,  and 
all  distraints  issued  to  recover  such  rent,  shall  be  commenced,  sued,  or  issued 
within  three  years  from  the  time  of  the  cause  of  action  accrued;  and  all  actions 
on  the  case  for  words,  and  actions  for  assault,  battery,  and  wounding,  or  any 
of  them,  within  one  year  from  the  time  the  cause  of  action  accrued.  This  sec- 
tion not  to  apply  to  such  accounts  as  co.icern  the  trade  or  merchandise  between 
merchants  and  merchants,  their  factors  and  servants,  who  are  not  residents 
within  this  State. . 

Sec.  2.  Within  what  Time  after  Disabilities  removed.  —  If  any  person 
entitled  to  any  of  the  actions  mentioned  in  the  preceding  section  shall  be  at  the 
time  such  cause  of  action  accrues  within  the  age  of  one  and  twenty  years,  or 
non  compos,  he  shall  be  at  liberty  to  bring  the  said  action  within  the  respective 
times  so  limited,  after  the  disability  is  removed,  as  other  persons  having  no 
such  disability  might  or  should  have  done.  (As  amended  by  Laws  0/1890,  chap. 
548,  and  of  1S94,  chap.  661.) 

Sec.  3.  Actions  on  Sealed  Instrument  or  Specialty.  —  No  bill,  testamentary, 
administration,  or  other  bond  (except  sheriffs'  and  constables'  bonds),  judg- 
ment, recognizance,  statute  merchant,  or  of  the  staple,  or  other  specialty  what- 
soever, except  such  as  shall  be  taken  for  the  use  of  the  State,  shall  be  good  and 
pleadable,  or  admitted  in  evidence  against  any  person  in  this  State  after  the 
principal  debtor  and  creditor  have  been  both  dead  twelve  years,  or  the  debt  or 
thing  in  action  above  twelve  years'  standing,  saving  to  all  persons  that  shall  be 
under  the  aforementioned  impediments  of  infancy,  insanity  of  mind,  or 
imprisonment,  the  full  benefit  of  all  such  bills,  bonds,  judgments,  recognizances, 
statute  merchant,  or  of  the  staple  or  other  specialties,  for  the  space  of  six  years 
after  the  removal  of  such  disability.  (As  amended  by  Laws  of  1890,  chap.  548, 
■  and  of  1891,  chap.  661.) 

S2c.  4.  Persons  absenting  or  Absconding.  —  No  person  absenting   himself 


/s* 


STATUTES    OF    LIMITATION. 


from  this  State,  or  that  shall  remove  from  county  to  county  after  any  debt  con- 
tracted, whereby  the  creditor  may  be  at  an  uncertainty  of  finding  out  such  per- 
son or  his  effects,  shall  have  any  benefit  of  any  limitation  herein  contained;  but 
nothing  contained  in  this  section  shall  debar  any  person  from  removing  himself 
or  family  from  one  county  to  another  for  his  convenience,  or  to  deprive  any 
person  leaving  this  State  for  the  time  herein  limited,  of  the  benefit  thereof,  he 
leaving  effects  sufficient  and  knDwn  for  the  payment  of  his  just  debts  in  the 
hands  of  some  person  who  will  assume  the  payment  thereof  to  his  creditors. 

Sec.  5.  Person  absent  when  Cause  arises.  —  If  any  person  liable  to  any  action 
shall  be  absent  out  of  the  State  at  the  time  when  the  cause  of  action  may  arise 
or  accrue  against  him,  he  shall  have  no  benefit  of  the  limitation  herein  con- 
tained, if  the  person  who  has  the  cause  of  action  shall  commence  the  same  after 
the  presence  in  this  State  of  the  person  liable  thereto  within  the  terms  herein 
limited. 

Sec.  6.  Actions  on  Sheriffs',  Coroners',  and  Constables'  Bonds.  —  All  actions 
on  sheriffs',  coroners'  and  constables'  bonds  shall  be  brought  within  five  years 
after  the  date  of  such  bonds,  and  not  afterwards;  but  the  State  may  sue  on  said 
bonds  for  her  own  use,  at  any  time;  and  if  any  person  entitled  to  suit  on  a 
sheriff's,  coroner's,  or  constable's  bond,  shall  be  at  the  time  of  the  accruing  of 
any  cause  of  action  on  such  bond  under  the  age  of  twenty-one  years,  or  non 
compos  mentis,  he  shall  be  at  liberty  to  bring  his  or  her  action  within  five  years 
after  the  removal  of  such  disability.     (As  amended  by  Laws  of  1894,  chap.  661.) 

Sec.  6A.  The  period  within  which  any  suit  or  action  may  be  brought  under 
any  statute  of  limitations  in  force  in  this  State,  shall  not  be  extended  because 
the  plaintiff,  in  such  suit  or  action  was,  is  or  shall  be  a.  feme  covert,  imprisoned, 
or  beyond  the  seas,  or  out  of  the  jurisdiction  of  this  State  at  the  time  of  the 
accrual  of  the  right,  title  or  cause  of  action.  (Added  by  the  Laws  of  18Q4,  chap. 
661.) 

Sec.  13.  When  Right  to  bring  Suit  Accrues. —  In  all  actions  to  be  hereafter 
brought,  when  a  party  has  a  cause  of  action  of  which  he- has  been  kept  in 
ignorance  by  the  fraud  of  the  adverse  party,  the  right  to  bring  suit  shall  be 
deemed  to  have  first  accrued  at  the  time  when  such  fraud  shall,  or  with  usual 
and  ordinary  diligence  might,  have  been  known  or  discovered. 


MASSACHUSETTS. 

PUBLIC  STATUTES,  1882.     Title  V.,  Chap.  196. 

[JVot  Changed  in  the  Revision  now  being   Made.] 

Of  the  Limitation  of  Actions. 

0/  the  Limitation  of  Real  Actions  and  Rights  of  Entry. 

Sec.  1.  No  person  shall  commence  an  action  for  the  recovery  of  lands,  nor 
make  an  entry  thereon,  unless  within  twenty  years  after  the  right  to  bring 
such  action  or  to  make  such  entry  first  accrued,  or  within  twenty  years  after  he, 
or  those  from,  by,  or  under  whom  he  claims,  have  been  seised  or  possessed  of 
tli     premises,  except  as  hereinafter  provided. 

Sec.  2.   If  such  right  or  title  first  accrued  to  an  ancestor  or  predecessor  of  the 


MASSACHUSETTS.  733 

person  who  brings  the  action  or  makes  the  entry,  or  to  any  other  person  from, 
by,  or  under  whom  he  claims,  the  twenty  years  shall  be  computed  from  the 
time  when  the  right  or  title  so  first  accrued. 

Sec.  3.  In  the  construction  of  this  chapter,  the  right  to  make  an  entry  or  to 
bring  an  action  to  recover  land  shall  be  deemed  to  have  first  accrued  at  the 
times  respectively  hereinafter  mentioned;   that  is  to  say,  — 

First.  When  a  person  is  disseised,  his  right  of  entry  or  of  action  shall  be 
deemed  10  have  accrued  at  the  time  of  such  disseisin. 

Second.  When  he  claims  as  heir  or  devisee  of  one  who  died  seised,  his  right 
shall  be  deemed  to  have  accrued  at  the  time  of  such  death,  unless  there  has 
been  a  tenancy  by  the  curtesy  or  other  estate  intervening  after  the  death  of  such 
ancestor  or  devisor,  in  which  case  his  right  shall  be  deemed  to  have  accrued 
when  such  intermediate  estate  expired,  or  when  it  would  have  expired  by  its 
own  limitation. 

Third.  When  there  is  such  an  intermediate  estate,  and  in  all  other  cases 
when  the  party  claims  by  force  of  a  remainder  or  reversion,  his  right,  so  far  as 
it  is  affected  by  the  limitation  herein  prescribed,  shall  be  deemed  to  have 
accrued  when  the  intermediate  or  precedent  estate  would  have  expired  by  its 
own  limitation,  notwithstanding  any  forfeiture  thereof  for  which  he  might  have 
entered  at  an  earlier  time. 

Fourth.  The  preceding  clause  shall  not  prevent  a  person  from  entering  when 
entitled  to  do  so  by  reason  of  any  forfeiture  or  breach  of  condition;  but  if  he 
claims  under  such  a  title,  his  right  shall  be  deemed  to  have  accrued  when  the 
forfeiture  was  incurred  or  the  condition  was  broken. 

Fifth.  In  all  cases  not  otherwise  specially  provided  for,  the  right  shall  be 
deemed  to  have  accrued  when  the  claimant  or  the  person  under  whom  he  claims 
first  became  entitled  to  the  possession  of  the  premises  under  the  title  upon  which 
the  entry  or  the  action  is  founded. 

Sec.  8.  No  person  shall  be  deemed  to  have  been  in  possession  of  lands  within 
the  meaning  of  this  chapter  merely  by  reason  of  having  made  an  entry  thereon, 
unless  he  has  continued  in  open  and  peaceable  possession  thereof  for  one  year 
next  after  such  entry  or  unless  an  action  is  commenced  upon  such  entry  and 
seisin  within  one  year  after  he  is  ousted  or  dispossessed. 

Chap.   197.  —  Of  the  Limitation  of  Personal  Actions. 

Sec.  1.  The  following  actions  shall  be  commenced  within  six  years  next  after 
the  cause  of  action  accrues,  and  not  afterwards   — 

First.  Actions  of  contract  founded  upon  contracts  or  liabilities  not  under 
seal,  express  or  implied,  except  such  actions  as  are  brought  upon  judgments 
or  decrees  of  courts  of  record  of  the  United  States  or  of  this  or  some  other  of  the 
United  States. 

Second.   Actions  for  arrears  of  rent,  except  upon  leases  under  seal. 

Third.  Actions  of  replevin,  and  all  other  actions  for  taking,  detaining,  or 
injuring  goods  or  chattels. 

Fourth.   All  actions  of  tort  except  those  hereinafter  mentioned. 

Sec.  2.  Actions  against  sheriffs  for  the  misconduct  or  negligence  of  their 
deputies  shall  be  commenced  within  four  years  next  after  the  cause  of  action 
accrues,  and  not  afterwards. 

Sec.  3.  Actions  for  assault  and  battery,  for  false  imprisonment,  for  slanderous 


734  STATUTES   OF   LIMITATION. 

words,  and  for  libels,  and  actions  for  the  taking  or  conversion  of  personal  prop- 
erty brought  against  executors,  administrators,  guardians,  trustees,  sheriffs, 
deputy-sheriffs,  constables,  and  assignees  in  insolvency,  shall  be  commenced 
within  two  years  next  after  the  cause  of  action  accrues,  and  not  afterwards. 

Sec.  4.  Actions  and  suits  for  penalties  or  forfeitures  under  penal  statutes,  if 
brought  by  a  person  to  whom  the  penalty  or  forfeiture  is  given  in  whole  or  in 
part,  shall  be  commenced  within  one  year  next  after  the  offense  is  committed, 
and  not  afterwaids. 

Sec.  5.  If  the  penalty  or  forfeiture  is  given  in  whole  or  in  part  to  the  Com- 
monwealth, a  suit  therefor  may  be  commenced  by  or  in  behalf  of  the  Common- 
wealth at  any  time  within  two  years  after  the  offense  is  committed,  and  not 
afterwards. 

Sec.  6.  None  of  the  foregoing  provisions  shall  apply  to  an  action  brought 
upon  a  promissory  note  signed  in  the  presence  of  an  attesting  witness,  if  the 
action  is  brought  by  the  original  payee  or  by  his  executor  or  administrator; 
nor  to  an  action  brought  upon  bills,  notes,  or  other  evidences  of  debt  issued 
by  any  bank. 

Sec.  7.  Personal  actions  on  contracts  not  limited  by  the  preceding  sections  or 
by  any  other  law  of  this  Commonwealth  shall  be  brought  within  twenty  years 
after  the  cause  of  action  accrues. 

Sec.  8.  In  an  action  of  contract  brought  to  recover  the  balance  due  upon  a 
mutual  and  open  account  current,  the  cause  of  action  shall  be  deemed  to  have 
accrued  at  the  time  of  the  last  item  proved  in  such  account. 

Sec.  14.  If  a  person  liable  to  any  of  the  actions  mentioned  in  this  chapter 
fraudulently  conceals  the  cause  of  such  action  from  the  knowledge  of  the  per- 
son entitled  to  bring  the  same,  the  action  may  be  commenced  at  any  time 
within  six  years  after  the  person  so  entitled  discovers  that  he  has  such  cause  of 
action. 

Sec.  20.  The  provisions  of  this  chapter  shall  apply  to  the  case  of  a  debt 
founded  on  contract,  and  which  is  alleged  by  way  of  set-off  on  the  part  of  a 
defendant;  and  the  time  of  limitation  of  such  debt  shall  be  computed  in  like 
manner  as  if  an  action  had  been  commenced  therefor  at  the  time  when  the 
plaintiff's  action  was  commenced. 

Sec.  21.  The  limitations  hereinbefore  prescribed  shall  apply  to  actions  brought 
by  the  Commonwealth  or  for  its  benefit. 

Sec.  22.  The  provisions  of  this  chapter  shall  not  apply  to  any  action  otherwise 
specially  limited  by  law. 

Sec.  23.  Every  judgment  and  decree  of  a  court  of  record  of  the  United  States, 
or  of  this  or  any  other  State,  shall  be  presumed  to  be  paid  and  satisfied  at  the 
expiration  of  twenty  years  after  the  judgment  or  decree  was  rendered. 

SUPPLEMENTAL  ACTS. 

Acts  of  1887.     Chap.  270. 

Sec.  3.  Action  for  Personal  Injuries  to  an  Employee. —  *  *  *  No  action 
for  the  recovery  of  compensation  for  injury  or  death  under  this  act  shall  be 
maintained,  unless  notice  of  the  time,  place,  and  cause  of  the  injury  is  given  to 
il,  ■  employer  within  thirty  days,  and  the  action  is  commenced  within  one  year 
from  the  occurrence  <<f  the  accident  causing  the  injury  or  death. 


MICHIGAN.  735 

Acts  of  1888.     Chap.  114. 

Sec.  1.  Action  for  Injury  from  defective  Highway,  Two  Years. 

Act  of  1S87,  Chap.  140,  limits  to  one  year  an  action  against  a  street  railway 
company  for  loss  of  life  by  negligence. 

By  Acts  of  1889,  Chap.  442,  The  Validity  of  Incumbrances  upon  titles  of  real 
estate,  imposed  more  than  thirty  years  before  the  proceeding,  may  be  determined 
on  petition  to  the  supreme  court,  and  the  decree  thereupon  made  will  exclude 
the  respondent's  claim. 


MICHIGAN. 

COMPILED  LAWS  1897.     Title  XVI.,  Chap.  267. 

The  Limitation  of  Actions  relating  to  Real  Property.     Chap.   139  Rev. 

Sts.  of  1846.) 

(9714.)  Sec.  1.  Actions  for  the  Recovery  of  Land,  when  to  be  brought.  — 
That  after  the  thirty-first  day  of  December,  in  the  year  of  our  Lord  eighteen 
hundred  and  sixty-three,  no  person  shall  bring  or  maintain  any  action  for  the 
recovery  of  any  lands,  or  the  possession  thereof,  or  make  any  entry  thereupon, 
unless  such  action  is  commenced,  or  entry  made,  within  ihe  time  herein  limited 
therefor,  after  the  right  to  make  such  entry  or  to  bring  such  action  shall  have 
first  accrued  to  the  plaintiff,  or  to  some  person  through  whom  he  claims,  to 
wit'  — 

First.  Within  five  years,  where  the  defendant  claims  title  to  the  land  in  ques- 
tion by  or  through  some  deed  made  upon  a  sale  thereof  by  an  executor, 
administrator,  or  guardian,  or  by  a  sheriff  or  other  proper  ministerial  officer, 
under  the  order,  judgment,  decree,  or  process  of  a  court  or  legal  tribunal  of 
competent  jurisdiction  within  this  State;  or  by  a  sheriff  upon  a  mortgage  fore- 
closure sale. 

Second.  Within  ten  years,  where  the  defendant  claims  title  under  a  deed  made 
by  some  officer  of  this  State,  or  of  the  United  States,  authorized  to  make  deeds 
upon  the  sale  of  lands  for  taxes  assessed  and  levied  within  this  State. 

Third.   Within  fifteen  years  in  all  other  cases. 

(9715.)  Sec.  2.  Computation  of  Time  when  Right  accrued  to  Ancestor,  &c.  — ■ 
If  such  right  or  title  accrued  to  an  ancestor,  predecessor,  01  grantor  of  the  per- 
son who  brings  the  action  or  makes  the  entry,  or  to  any  other  person  from  or 
under  whom  he  claims,  the  said  above  periods  of  limitation  shall  be  computed 
from  the  time  when  the  right  or  title  so  first  accrued  to  such  ancestor,  prede- 
cessor, grantor,  or  other  person. 

(9716.)  Sec.  3.  When  right  deemed  to  have  accrued. 

(9717.)  Sec.  4.  Who  presumed  to  have  Possession.  —  In  every  action  for  the 
recovery  of  real  estate,  or  the  possession  thereof,  the  person  establishing  the 
legal  title  to  the  premises  shall  be  presumed  to  have  been  possessed  thereof, 
within  the  time  limited  by  law  for  bringing  such  action,  unless  it  shall  appear 
that  the  same  have  been  possessed  adversely  to  such  legal  title  by  the  defend- 
ant, or  by  those  from  or  under  whom  he  claims. 

(9721.)  Sec.  8.  Entry  on  Land,  when  effectual.  —  No  person  shall  be  deemed 
to  have  been  in  possession  of  any  lands,  within  the  meaning  of  this  chapter. 


736  STATUTES   OF   LIMITATION. 

merely  by  reason  of  having  made  an  entry  thereon,  unless  he  shall  have  con- 
tinued in  open  and  peaceable  possession  of  the  premises  for  at  least  one  year 
next  after  such  entry,  or  unless  an  action  shall  be  commenced  upon  such  entry 
and  seisin  within  one  year  after  he  shall  be  ousted  or  dispossessed  of  the 
premises. 

(9724.)  Sec.  ir.  Suits  by  the  People  of  this  State.  —  No  suit  for  the  recovery 
of  any  lands  shall  be  commenced  by  or  in  behalf  of  the  people  of  this  Slate, 
unless  vvithin  twenty  years  after  the  right  or  title  of  the  people  of  1  he  State  therein 
first  accrued,  or  vvithin  twenty  years  after  the  said  people,  or  those  from  or 
th;ough  whom  they  claim,  shall  have  been  seised  or  possessed  of  the  premises, 
or  shall  have  received  the  rents  and  profits  of  the  same,  or  some  part  thereof. 

Chap.  268. 
Limitation  of  Personal  Actions. 

(972S.)  Sec.  1.  Certain  Actions  to  be  brought  within  Six  Years.  — First.  All 
actions  of  debt,  founded  upon  any  contract,  or  liability  not  under  seal,  except 
such  as  are  brought  upon  the  judgment  or  decree  of  some  court  of  record  of 
the  United  States,  or  of  this  or  some  olher  of  the  United  States. 

Second.  All  actions  upon  judgments  rendered  in  any  court,  olher  than  those 
above  excepted. 

Third    All  actions  for  arrears  of  rent. 

Fourth.  All  actions  of  assumpsit,  or  upon  the  case,  founded  upon  any  con- 
tract or  liability,  express  or  implied. 

Fifth.   All  actions  for  waste. 

Sixth.  All  actions  of  replevin  and  trover,  and  all  other  aclions  for  taking( 
detaining,  or  injuring  goods  or  chattels. 

Seventh.  All  other  actions  on  the  case,  except  actions  for  slanderous  words  or 
for  libels. 

(972q.)  Sec.  2.  Certain  Ac  tions  to  be  brought  within  Two  Years.  —  All  actions 
for  trespass  upon  land,  or  for  assault  and  battery,  or  for  false  imprisonment, 
and  all  actions  for  slanderous  words,  and  for  libels. 

(9730.)  Sec.  3.  Actions  against  Sheriffs,  -&c.  —  All  actions  against  sheriffs,  for 
the  misconduct  or  neglect  of  their  deputies,  shall  be  commenced  within  four 
years. 

(9731.)  Sec.  4.  Exceptions. —  None  of  the  provisions  of  this  chapter  shall 
apply  to  any  action  brought  upon  any  bills,  notes,  or  other  evidences  of  debt 
issued  by  any  bank. 

(9732.)  Sec.  5.  Cases  of  Accounts  Current.  —  In  all  actions  of  debt  or  assump- 
sit brought  to  recover  the  balance  due  upon  a  mutual  and  open  account  current, 
the  cause  of  action  shall  be  deemed  to  have  accrued  at  the  time  of  the  last  item 
proved  in  such  account. 

(9734)  Sec.  7.  General  Limitation.  —  All  personal  actions  on  any  contract, 
not  limited  by  ihe  foregoing  sections  or  by  any  law  of  this  State,  vvithin  ten 
yean . 

(973  ).)  Sec.  12.  Fraudulent  Concealment  by  Defendant.  —  If  any  person  who 
is  liable  to  any  of  the  actions  mentioned  in  this  chapter  shall  fraudulently  con- 
ceal the  cause  of  such  action  from  the  knowledge  of  the  person  entitled  thereto, 
the  action  may  be  commenced  at  any  time  within  two  years  after  the  person  who 
is  entitled    to   bring  the  same  shall  discover  that  he  has  such  cause  of  action. 


MICHIGAN.  737 

although   such   action   would   be  otherwise   barred   by   the   provisions  of   this 
chapter. 

(9746.)  Sec.  19.  Limitation  of  Demands  alleged  as  Set-off.  —  All  the  pro- 
visions of  this  chapter  shall  apply  to  the  case  of  any  debt  or  contract  alleged  by 
way  of  sel-off  on  the  part  of  a  defendant;  and  the  time  of  the  limitation  of  such 
debt  shall  be  computed  in  like  manner  as  if  an  action  had  been  commenced 
therefor  at  the  time  when  the  plaintiff's  action  was  commenced,  provided  such 
debt  or  contract  would  have  been  barred  according  to  law  before  the  accruing 
of  the  claim  or  demand  upon  which  such  defendant  is  sued. 

(9747.)  Sec.  20  Limitation  of  Suits  by  the  People,  &c. —  The  limitations 
heretofore  prescribed  for  the  commencement  of  actions  shall  apply  to  the  same 
actions  when  brought  in  the  name  of  the  people  of  this  State,  or  in  the  name  of 
any  officer  or  otherwise,  for  the  benefit  of  the  State,  in  the  same  manner  as  to 
actions  brought  by  individuals. 

(9748.)  Sec.  21.  Limitation  of  Suits  for  Penalties.  —  All  actions  and  suits  for 
any  penalty  or  forfeiture  on  any  penal  statute,  brought  in  the  name  of  the 
people  of  this  State,  within  two  years. 

(9749.)  Sec.  22.  Of  Suits  limited  by  other  Statutes.  —  The  preceding  section 
shall  not  apply  to  any  suit  which  is  or  shall  be  limited  by  any  statute,  to  be 
brought  within  a  shorter  or  longer  time  than  is  prescribed  in  said  section;  but 
such  suit  shall  be  brought  within  the  time  that  may  be  limited  by  such  statute. 

(9751.)  Sec.  24.  When  Action  upon  Judgment  shall  be  brought.  —  Every 
action  upon  a  judgment  or  decree  heretofore  rendered,  or  hereafter  to  be 
rendered,  in  a  court  of  record  of  the  United  States,  or  of  this  State,  or  of  any 
other  State  of  the  United  States,  shall  be  brought  within  ten  years  after  the  entry 
of  the  judgment  or  decree,  and  not  afterwards:  Provided,  that  in  all  cases  of 
judgments,  or  decrees  entered  nine  years  or  more  before  this  act  shall  take 
effect,  one  year  from  the  time  when  this  act  shall  take  effect  shall  be  allowed 
for  the  commencement  of  an  action  or  proceeding  upon  such  judgment  or 
decree,  to  revive  the  same:  Provided,  further,  that  no  judgment  or  decree  shall 
be  revived,  an  action  to  recover  or  enforce  which  is  now  legally  barred. 

(9752.)  Sec.  25.  Actions  barred  and  Rights  accrued  under  Former  Statutes. 
—  No  personal  action  shall  be  maintained,  which,  at  the  time  when  this  chapter 
shall  take  effect  as  law,  shall  have  been  barred  by  the  statute  of  limitation  in 
force  at  the  time  when  the  cause  of  action  accrued;  and  where  any  right  of 
action  shall  have  accrued  before  the  time  when  this  chapter  shall  take  effect,  it 
shall  not  be  affected  by  this  chapter,  but  all  such  causes  of  action  shall 
be  governed  and  determined  according  to  the  law  under  which  the  right  of  action 
accrued,  in  respect  to  the  limitation  of  such  actions. 

(9754.)  Time  Suit  pending  in  Chancery  not  to  be  computed  under  Limitation 
Laws. — The  time  during  which  any  case  in  chancery,  commenced  by  any 
debtor,  has  or  may  be  pending  and  undetermined,  shall  not  be  computed  as 
constituting  any  part  of  the  period  limited  or  prescribed  by  any  statute  of  lim- 
itation in  force  at  the  time  of  the  commencement  of  such  case  in  chancery, 
prescribing  the  time  within  which  an  action  in  relation  to  the  debt  or  subject- 
matter  in  dispute,  as  set  forth  in  the  proceedings  in  such  case  in  chancery, 
should  or  might  be  commenced. 
[stats,  of  lim.  — 47] 


738  STATUTES   OF   LIMITATION. 

MINNESOTA. 
GENERAL  STATUTES.     Chap.  66,  Title  II. 

Wenzell  and   Tiffany  s   Compilation,  1894. 

Sec.  5133.  Limitations  of  Actions.  —  Actions  can  only  be  commenced  within 
the  periods  prescribed  in  this  chapter,  after  the  cause  of  action  accrues,  except 
where  in  special  cases  a  different  limitation  is  prescribed  by  statute. 

Sec.  5134.  Actions  to  recover  Real  Property.  —  No  action  for  the  recovery 
of  real  property,  or  for  the  recovery  of  the  possession  thereof,  shall  be  main- 
tained,  unless  it  appears  that  the  plaintiff,  his  ancestor,  predecessor,  or  grantor, 
was  seised  or  possessed  of  the  premises  in  question  within  fifteen  years  before 
the  commencement  of  the  action. 

Sec.  5135.  Actions  upon  Judgments  or  Decrees.  —  Within  ten  years:  — 
First.  An  action  upon  a  judgment  or  decree  of  a  court  of  the  United  States, 
or  of  any  State  or  Territory  of  the  United  States. 

Sec.  5136.  Actions  upon  Contracts,  &c,  within  Six  Years. — Within  six 
years:  — 

First.  An  action  upon  a  contract  or  other  obligation,  express  or  implied, 
excepting  those  mentioned  in  the  preceding  section. 

Second.  An  action  upon  a  liability  created  by  statute,  other  than  those  upon  a 
penalty  or  forfeiture. 

Third.  An  action  for  trespass  upon  real  property. 

Fourth.  An  action  for  taking,  detaining,  and  injuring  personal  property, 
including  actions  for  the  specific  recovery  thereof. 

Fifth.  An  action  for  criminal  conversation  or  for  any  other  injury  to  the 
person  or  rights  of  another,  not  arising  on  obligation,  and  not  hereinafter 
enumerated. 

Sixth.  An  action  for  relief,  on  the  ground  of  fraud;  the  cause  of  action  in 
such  case  not  to  be  deemed  to  have  accrued  until  the  discovery  by  the  aggrieved 
party  of  the  facts  constituling  the  fraud. 

Seventh.  Actions  to  enforce  a  trust  or  to  compel  an  accounting,  where  the 
trustee  has  neglected  to  discharge  his  trust,  or  has  repudiated  the  trust  relation, 
or  has  fully  performed  the  same. 

Sec.  5137.  Actions  against  Certain  Officers,  or  for  a  Penalty.  —  Within  three 
years:  — 

First.  An  action  against  a  sheriff,  coroner,  or  constable,  upon  the  liability  by 
the  doing  of  an  act  in  his  official  capacity,  and  in  virtue  of  his  office,  or  by  an 
omission  of  an  official  duty,  including  the  non-payment  of  money  collected 
upon  an  execution. 

Second.  An  action  upon  a  statute  for  a  penalty  or  forfeiture,  where  the  action 
is  given  to  the  party  aggrieved,  or  to  such  party  and  the  State  of  Minnesota. 
Sec.  5138.  Action  for  Libel,  &c,  within  Two  Years.  —  Within  two  years.:  — 
First.   An  action   for  libel,  slander,   assault,  battery,    false   imprisonment  or 
other    tort    resulting    in    personal    injury.     {As    amended  by    the    Acts  of  iSgj, 
chap,  jo.) 

>id.   An  action  upon  a  statute  for  a  forfeiture  or  penalty  to  the  State. 
Sec.  5130.  Action   upon   Mutual   and  Current  Account  accrues,  when.  —  In 
an  action  brought  to  recover  a  balance  due  upon  a  mutual,  open,  and  current 


Mississippi.  739 

account,  when  there  have  been  reciprocal  demands  between  the  parties,  the 
cause  of  action  is  deemed  to  have  accrued  from  the  time  of  the  last  item  proved 
in  the  account  on  either  side. 

Sec.  5141.  Action  to  foreclose  Mortgage.  —  Every  action  to  foreclose  a  mort- 
gage heretofore  or  hereafter  made  upon  real  estate  shall  be  commenced  wilhin 
fifteen  years  after  the  cause  of  action  accrues,  and  said  fifteen  years  shall  not 
be  enlarged  or  extended  by  reason  of  any  non-residence. 


MISSISSIPPI. 

REVISED  CODE,   1892.     Chap.  83. 
Limitation  of  Actions. 

Sec.  2730  (2664.)  Actions  concerning  Land.  —  A  person  mav  nol  make  an 
entry,  or  commence  an  action  to  recover  any  land,  but  within  ten  years  next 
after  the  time  at  which  the  right  to  make  such  entry  or  to  bring  such  action 
shall  have  first  accrued  to  some  person  through  whom  he  claims;  or  if  such 
right  shall  not  have  accrued  to  any  person  through  whom  he  claims,  then 
within  ten  years  next  after  the  time  at  which  the  right  to  make  such  entry  or  to 
bring  such  action  shall  ha^e  first  accrued  to  the  person  making  or  bringing  the 
same.  But  if,  at  the  time  at  which  the  right  of  any  person  to  make  an  entry, 
or  to  bring  an  action  to  recover  any  land,  shall  have  first  accrued,  such  person 
shall  have  been  under  the  disability  of  infancy,  or  unsoundness  of  mind,  then 
such  person  or  the  person  claiming  through  him,  may,  notwithstanding  the 
period  of  ten  years  hereinbefore  limited  shall  have  expired,  make  an  entry,  or 
bring  an  action  to  recover  the  land,  at  any  time  within  ten  years  next  after  the 
time  at  which  the  person  to  whom  such  right  shall  have  first  accrued  shall  have 
ceased  to  be  under  either  disability,  or  shall  have  died,  whichever  shall  have 
first  happened;  but  when  any  person,  who  shall  be  under  either  of  the  disabili- 
ties mentioned,  at  the  time  at  which  his  right  shall  have  first  accrued,  shall 
depart  this  life,  without  having  ceased  to  be  under  such  disability,  no  time  to 
make  an  entry,  or  to  bring  an  action  to  recover  the  land,  beyond  the  period  of 
ten  years  next  after  the  time  at  which  such  person  shall  have  died,  shall  be 
allowed,  by  reason  of  the  disability  of  any  other  person. 

Sec.  2731.  (2665).  Same  Limitation  as  to  Suits  in  Equity.  —  A  person  claim- 
ing land  in  equity  may  not  bring  any  suit  to  recover  the  same,  but  within  the 
period  during  which,  by  virtue  of  the  provisions  hereinbefore  contained,  he 
might  have  made  an  entry,  or  brought  an  action  to  recover  the  same,  if  he  had 
been  entitled  at  law  to  such  estate,  interest,  or  right  in  or  to  the  same,  as  he 
shall  claim  therein  in  equity;  but  in  every  case  of  a  concealed  fraud,  the  right 
of  any  person  to  bring  a  suit  in  equity  for  the  recovery  of  any  land,  of  which  he 
or  any  person  through  whom  he  claims  may  have  been  deprived  by  such  fraud, 
shall  be  deemed  to  have  first  accrued  at  and  not  before  the  time  at  which  such 
fraud  shall,  or,  with  reasonable  diligence  might,  have  been  first  known  or 
discovered. 

Sec.  2734  (2668).  Ten  Years'  Adverse  Possession  gives  Title.  —  Ten  years' 
actual  adverse  possession  by  any  person  claiming  to  be  the  owner  for  that  time 


740  STATUTES   OF   LIMITATION. 

of  any  land,  uninterruptedly  continued  for  ten  years  by  occupancy,  descent, 
conveyance,  or  otherwise,  in  whatever  way  such  occupancy  may  have  been 
commenced  or  continued,  shall  vest  in  every  actual  occupant  or  possessor  of 
such  land  a  full  and  complete  title,  saving  to  persons  under  the  disability  of 
minority  or  unsoundness  of  mind  the  right  to  sue  within  ten  years  after  the 
removal  of  such  disability,  as  provided  in  the  first  section  of  this  chapter,  bu 
the  saving  in  favor  of  persons  under  disability  of  unsoundness  of  mind  shall 
never  extend  longer  than  thirty-one  vears. 

Sec.  2735  (539).  Three  Years'  Actual  Possession  under  a  Tax-title  bars  Suit. 

Sec.  2736.  Suits  against  the  State  or  Municipalities.  —  Statutes  of  limitation  in 
civil  cases  shall  not  run  against  the  State,  or  any  subdivision  or  municipal  cor- 
poration thereof;  but  all  such  statutes  shall  run  in  favor  of  the  State,  the 
counties,  and  the  municipal  corporations  therein;  and  the  statutes  of  limitation 
shall  begin  to  run  in  favor  of  the  State,  the  counties,  and  the  municipal  cor- 
porations at  the  time  when  the  plaintiff  first  had  the  right  to  demand  payment 
of  the  officer  or  board  authorized  to  allow  or  disallow  the  claim  sued  upon. 

Sec.  2737  (266q).  Actions  to  be  brought  in  Six  Years.  —  All  actions  for  which 
no  other  period  of  limitation  is  prescribed  shall  be  commenced  within  six  years 
next  after  the  cause  of  such  action  accrued,  and  not  after. 

Sec.  2739  (2670).  Actions  to  be  brought  in  Three  Years.  —  Actions  on  an  open 
account  or  stated  account,  not  acknowledged  in  writing,  signed  by  the  debtor, 
and  on  any  unwritten  contract,  express  or  implied. 

Sec.  2740  (2671).  When  Statute  commences  to  run  on  Open  Accounts.  —  In 
all  actions  brought  to  recover  the  balance  due  upon  a  mutual  and  open  current 
account,  where  both  parties  are  merchants  or  traders,  the  cause  of  action  shall 
be  deemed  to  have  accrued  at  the  time  of  the  true  date  of  the  last  item  proved 
in  such  account;  and  in  all  other  actions  upon  open  accounts,  the  period  of 
limitation  shall  commence  to  run  against  the  several  items  thereof,  from  the 
dates  at  which  the  same  respectively  became  due  and  payable. 

Sec.  2741  (2672)  Acticn  for  Penalty  commenced  in  One  Year.  —  All  actions 
and  suits  for  any  penalty  or  forfeiiure  on  any  penal  statute,  brought  by  any 
person  to  whom  the  penalty  or  forfeiture  is  given,  in  whole  or  in  part,  shall  be 
commenced  within  one  year  next  after  the  offense  committed,  and  not  after. 

Sec.  2742  (2673).  Other  Actions  commenced  in  One  Year.  —  All  actions  for 
assault,  battery,  maiming,  false  imprisonment,  malicious  arrest  or  menace,  and 
all  actions  for  slanderous  words  concerning  the  person  or  title,  and  for  libels, 
shall  be  commenced  within  one  year.     (See  Sec.  2747,  enacted  in  18S8.) 

Sec.  2743  (2674).  Actions  on  Domestic  Judgments.  —  All  actions  founded  on 
any  judgment  or  decree  rendered  by  any  court  of  record  in  this  State,  shall  be 
brought  within  seven  years  next  after  the  rendition  of  such  judgment  or  decree, 
and  not  after;  and  an  execution  shall  not  issue  on  any  judgment  or  decree 
after  seven  years  from  the  date  of  the  judgment  or  decree. 

Sec.  2744  (2675).  Actions  en  Foreign  Judgments.  —  All  actions  founded  on 
any  judgment  or  decree,  rendered  by  any  court  of  record  without  this  State, 
si,  il]  be  brought  within  seven  years  after  the  rendition  of  such  judgment  or 
decree,  and  not  after.  Hut  if  the  person  against  whom  such  judgment  or 
dei  ree  was  or  shall  be  rendered,  was  or  shall  be  at  the  time  of  the  institution 
of  the  action  a  resident  of  this  State,  such  action,  founded  on  such  judgment  or 
decree,  shall  be  commenced  within  three  years  next  after  the  rendition  thereof, 
and  not  after. 


MISSISSIPPI.  74I 

Sec.  2747.  Saving  in  Favor  of  Convicts.  —  If  anv  person  entitled  to  bring  an 
action  for  assault,  assault  and  battery,  or  maiming,  shall  at  the  time  the  cause 
of  such  action  accrued,  have  been  in  custody  as  a  convict,  such  person  may 
bring  such  action  within  one  year  aft._r  his  release. 

Sec.  2749  (2679).  Concealed  Fraud.  —  If  any  person  liable  to  any  personal 
action  shall  fraudulently  conceal  the  cause  of  action  from  the  knowledge  of  the 
person  entitled  thereto,  the  cause  of  such  action  shall  be  deemed  to  have  first 
accrued  at,  and  not  before,  the  time  at  which  such  fraud  shall  be,  or  with  rea- 
sonable  diligence    might   have   been,    first   known    or   discovered.      (See   sec. 

273I-) 

Sec.  2756a  (2687).  Limitation  of  Set-off.  — All  the  provisions  of  this  chapter 
shall  apply  to  the  case  of  any  debt  or  demand  on  contract,  alleged  by  way  of 
set-off  on  the  part  of  a  defendant;  and  the  time  of  limitation  of  such  debt  or 
demand  shall  be  computed  in  like  manner  as  if  an  action  had  been  commenced 
therefor  at  the  time  when  the  plaintiff's  action  was  commenced;  and  the  fact 
that  a  set-off  is  barred  shall  not  preclude  the  defendant  from  using  it  as  such  if 
he  held  it  against  the  debt  sued  on  before  it  was  barred. 

Sec.  2758a  (2691).  Statute  not  to  run  when  Person  prohibited  to  Sue.  —  When 
any  person  shall  be  prohibited  by  law,  or  restrained  or  enjoined  by  the  order, 
decree,  or  piocess  of  any  court  in  this  State,  from  commencing  or  prosecuting 
any  action  or  remedy,  the  time  during  which  such  person  shall  be  so  prohibited, 
enjoined,  or  restrained  shall  not  be  computed  as  any  part  of  the  period  of  time 
limited  by  this  chapter  for  the  commencement  of  such  action. 

Sec.  2759  (2692).  When  the  Limitation  to  commence.  —  The  several  periods 
of  limitation  prescribed  by  this  chapter  shall  commence  from  the  date  when  it 
shall  take  effect;  but  the  same  shall  not  apply  to  any  actions  commenced,  nor 
to  any  cases  where  the  right  of  action  or  of  entry  shall  have  accrued,  before  that 
time,  but  the  same  shall  be  subject  to  the  laws  now  in  force;  but  this 
law  may  be  pleaded  in  any  case  where  a  bar  has  accrued  under  the  provisions 
thereof. 

Sec.  2761  (2694).  Trustee  barred,  Beneficiaries  barred.  —  When  the  legal  title 
to  property  or  a  right  in  action  is  in  an  executor,  administrator,  guardian,  or 
other  trustee,  the  time  during  which  any  statute  of  limitations  runs  against 
such  trustee  shall  be  computed  against  the  person  beneficially  interested  in  such 
property  or  right  in  action,  although  such  person  may  be  under  disability,  and 
within  the  saving  of  any  statute  of  limitations;  and  may  be  availed  of  in  any 
suit  or  action  by  such  person. 

Sec.  2762  (2695).  Suits  in  Equity.  —  Whenever  there  be  a  concurrent  juris- 
diction in  the  courts  of  common  law  and  in  the  courts  of  equity  of  any  cause  of 
action,  the  provisions  of  this  chapter,  limiting  a  time  for  the  commencement  of 
a  suit  for  such  cause  of  action  in  a  court  of  common  law,  shall  apply  to  all  suits 
to  be  brought  for  the  same  cause  in  a  court  of  chancery.     (See  sec.  2731.) 

Sec.  2763  (2696).  Limitation  of  Express  Trusts.  —  Bills  for  relief,  in  case  of 
the  existence  of  a  trust  not  cognizable  by  the  courts  of  common  law  and  in  all 
other  cases  not  herein  provided  for,  shall  be  filed  within  ten  years  after  the 
cause  of  action  shall  accrue,  and  not  after;  saving,  however,  to  all  persons 
under  disability  of  infancy,  or  unsoundness  of  mind,  the  like  period  of  time 
after  such  disability  shall  be  removed;  but  the  saving  in  favor  of  persons  under 
disability  of  unsoundness  of  mind  shall  never  extend  longer  than  thirty-one 
years. 


742  STATUTES   OF   LIMITATION. 

MISSOURI. 

REVISED  STATUTES,  1899.     Chap.  48. 

Limitations  of  Actions. 

Art.   I.  —  Real  Actions. 

Sec.  4262.  Actions  for  Recovery  cf  Lands  to  be  commenced,  when.  —  No 
action  for  the  recovery  of  any  lands,  tenements,  or  hereditaments,  or  for  the 
recovery  of  the  possession  thereof,  shall  be  commenced,  had,  or  maintained  by 
any  person,  whether  citizen,  denizen,  alien,  resident,  or  non-resident  of  this 
State,  unless  it  appear  that  the  plaintiff,  his  ancestor,  predecessor,  grantor,  or 
other  person  under  whom  he  claims  was  seised  or  possessed  of  the  premises  in 
question,  within  ten  years  before  the  commencement  of  such  action. 

Sec.  4263.  No  Entry  valid  unless  Action  is  commenced,  when.  —  No  entry 
upon  any  lands,  tenements,  or  hereditaments  shall  be  deemed  sufficient  or 
valid  as  a  claim,  unless  an  action  is  commenced  thereon  within  one  year  after 
the  making  of  such  entry,  and  within  ten  years  from  the  time  when  the  right  to 
make  such  entry  descended  or  accrued. 

Sec.  4266.  Possession  of  Part,  when  Possession  of  the  Whole  Tract.  —  The 
possession,  under  color  of  title,  of  a  part  of  a  tract  or  lot  of  land,  in  the  name 
of  the  whole  tract  claimed,  and  exercising,  during  the  time  of  such  possession, 
the  usual  acts  of  ownership  over  the  whole  tract  so  claimed,  shall  be  deemed  a 
possession  of  the  whole  of  such  tract. 

Sec.  426S.  Limitation  in  Case  of  Certain  Equitable  Titles.  —  Whenever  any 
real  estate,  the  equitable  title  to  which  shall  have  emanated  from  the  govern- 
ment more  than  ten  years,  shall  thereafter,  on  any  date,  be  in  the  lawful  pos- 
session of  any  person,  and  which  shall  or  might  be  claimed  by  another,  and 
which  shall  not  at  such  date  have  been  in  possession  of  the  said  person  claim- 
ing or  who  might  claim  the  same,  or  of  any  one  under  whom  he  claims  or  might 
claim,  for  thirtv  consecutive  years,  and  on  which  neither  the  said  person  claiming 
or  who  might  claim  the  same,  nor  those  under  whom  he  claims  or  might  claim 
has  paid  any  taxes  for  all  that  period  of  time,  the  said  person  claiming  or  who 
might  claim  such  real  estate  shall,  within  one  year  from  said  date,  bring  his 
action  to  recover  the  same,  and  in  default  thereof  he  shall  be  forever  barred, 
and  his  right  and  title  shall,  ipso  facto,  vest  in  such  possessor:  Provided,  however, 
that  in  all  cases  such  action  may  be  brought  at  any  time  within  one  year  from 
the  date  at  which  this  article  takes  effect  and  goes  into  force.  (Sec.  2095  pre- 
scribes the  procedure.) 

Sec.  4269.  When  Legal  Title  has  not  emanated  from  the  United  States.  —  In 
all  cases  in  which  the  legal  title  has  not  yet  emanated  from  the  government  of 
the  United  States,  but  in  which  there  has  been  an  equitable  right  or  title  for 
more  than  twenty  years,  under  which  a  claimant  has  had  a  right  of  actionby 
the  statutes  of  this  State,  and  in  which  the  land  has  been  in  the  possession  of 
any  person  for  twenty  years,  claiming  the  same  in  fee,  any  person  claiming 
against  the  possessor  shall  bring  his  action  under  the  legal  title  within  one  year 
after  it  issues  from  the  government;  and  in  default  thereof  he  shall  be  forever 
barrel,  and  bis  right  and  title  shall,  ipso  facto,  vest  in  such  possessor. 

Sec.  4270.   8tatute  not  to  extend  to  Certain  Lands.  —  Nothing  contained  in 


Missouri.  743 

any  statute  of  limitation  shall  extend  to  any  lands  given,  granted,  sequestered, 
or  appropriated  to  any  public,  pious,  or  charitable  use.  or  to  any  lands  belong- 
ing to  this  State. 

Art.    II.  —  Personal  Actions. 

Sec.  4271.  Period  of  Limitation  prescribed.  —  Civil  actions,  other  than  those 
for  the  recovery  of  real  property,  can  only  be  commenced  within  the  periods 
prescribed  in  the  following  sections,  after  the  causes  of  action  shall  have  accrued. 

Sec.  4272.  What  Action  shall  be  commenced  within  Ten  Years.  —  Within  ten- 
years:  — 

First.  An  action  upon  any  writing,  whether  sealed  or  unsealed,  for  the  pay- 
ment of  money  or  property. 

Second.  Actions  brought  on  any  covenant  or  warranty  contained  in  any  deed 
of  conveyance  of  land  shall  be  brought  within  ten  years  next  after  there  shall 
have  been  a  final  decision  against  the  title  of  the  covenantor  in  such  deed,  and 
actions  on  any  covenant  of  seisin  contained  in  any  such  deed  shall  be  brought 
within  ten  years  after  the  cause  of  such  action  shall  accrue. 

Third.   Actions  for  relief,  not  herein  otherwise  provided  for. 

Sec.  4273.  What  within  Five  Years.  —  Within  Jive  years:  — 

First.  All  actions  upon  contracts,  obligations,  or  liabilities,  express  or  implied, 
except  those  mentioned  in  section  three  thousand  two  hundred  and  twenty-nine, 
and  except  upon  judgments  or  decrees  of  a  court  of  record,  and  except  where  a 
different  time  is  herein  limited. 

Second.  An  action  upon  a  liability  created  by  a  statute  other  than  for  a 
penalty  or  forfeiture. 

Third.  An  action  for  trespass  on  real  estate. 

Fourth.  An  action  for  taking,  detaining,  or  injuring  any  goods  or  chattels, 
including  actions  for  the  recovery  of  specific  personal  property,  or  for  any  other 
injury  to  the  person  or  rights  of  another,  not  arising  on  contract,  and  not  herein 
otherwise  enumerated. 

Fifth.  An  action  for  relief  on  the  ground  of  fraud,  the  cause  of  action  in  such 
case  to  be  deemed  not  to  have  accrued  until  the  discovery  by  the  aggrieved 
party,  at  any  time  within  ten  years,  of  the  facts  constituting  the  fraud. 

Sec.  4274.  What  within  Three  Years.  —  Within  three  years:  — 

First.  An  action  against  a  sheriff,  coroner,  or  other  officer,  upon  a  liability 
incurred  by  the  doing  of  an  act  in  his  official  capacity  and  in  virtue  of  his  office, 
or  by  the  omission  of  an  official  duty,  including  the  non-payment  of  money 
collected  upon  an  execution  or  otherwise. 

Second.  An  action  upon  a  statute  for  a  penalty  or  forfeiture,  when  the  action 
is  given  to  the  party  aggrieved,  or  10  such  party  and  the  State. 

Sec.  4.275.  What  within  Two  Years.  —  Within  two  years:  An  action  for  libel, 
slander,  assault,  battery,  false  imprisonment,  or  criminal  conversation. 

Sec.  4276.  No  Action  to  Foreclose  Mortgage  after  Note  Barred.  —  No  suit, 
action  or  proceeding  under  a  power  of  sale  to  foreclose  any  mortgage  or  deed 
of  trust,  executed  hereafter  to  secure  any  obligation  to  pay  money  or  property, 
shall  be  had  or  maintained  after  such  obligation  has  been  barred  by  the  stat- 
utes of  limitations  of  this  State.     (Laws  1891,  p.  1S4.) 

Sec.  4277.  Mortgage  Notes  Executed  Prior  to  1891  barred,  when.  —  Nor 
shall  any  such  suit  be  had  or  maintained  to  foreclose  any  such  mortgage  or 
deed  of  trust  heretofore  executed  to  secure  any  such  obligation  after  the  expira- 
tion of  two  years  after  the  passage  of  this  act. 


744  STATUTES   OF   LIMITATION. 

Sec.  4278.  In  Account  Current,    when  Cause  of  Action  Accrued.  —  In  an 

action  brought  to  recover  a  balance  due  on  a  mutual,  open,  and  current  account, 
where  there  have  been  reciprocal  demands  between  the  parties,  the  cause  of 
action  shall  be  deemed  to  have  accrued  from  the  time  of  the  last  item  in  the 
account  on  the  adverse  side. 

Sec.  4280.  Limitation  on  Actions  Originating  in  other  States.  —  Whenever  a 
cause  of  action  has  been  fully  barred  by  the  laws  of  the  State,  Territory  or 
country  in  which  it  originated,  said  bar  shall  be  a  complete  defense  to  any 
action  thereon,  brought  in  any  of  the  courts  of  this  State.  {Added  bv  Act  of 
May  24,  1899  ) 

Sec.  4297.  Judgments  presumed  to  be  paid,  when.  Presumption,  how 
repelled. —  Every  judgment,  order  or  decree  of  any  court  of  record  of  the 
United  States,  or  of  this  or  any  other  State,  Territory,  or  country,  shall  be  pre- 
sumed to  be  paid  and  satisfied  after  the  expiration  of  ten  years  from  the  dale  of 
the  original  rendition  thereof,  or  if  the  same  has  been  revived  upon  personal 
service  duly  had  upon  the  defendant  or  defendants  therein,  then  after  ten  years 
from  and  after  such  revival,  or  in  case  a  payment  has  been  made  on  such  judg- 
ment, order  or  decree,  and  duly  entered  upon  the  record  thereof,  after  the 
expiration  of  ten  years  from  the  last  payment  so  made,  and  after  the  expiration 
of  ten  years  from  the  date  of  the  original  rendition  or  revival  upon  personal 
service,  or  from  the  date  of  the  last  payment,  such  judgment  shall  be  conclu- 
sively presumed  to  be  paid,  and  no  execution,  order  or  process  shall  issue 
thereon,  nor  shall  any  suit  be  brought,  had  or  maintained  thereon  for  any  pur- 
pose whatever.  But  in  any  suit  in  which  the  party  against  whom  such  judg- 
ment, order,  or  decree  was  rendered,  or  his  heirs  or  personal  representatives, 
shall  be  a  party,  such  presumption  may  be  repelled  by  proof  of  payment  or  of 
written  acknowledgment  of  indebtedness,  made  within  twenty  years,  of  some 
part  of  the  amount  recovered  by  such  judgment,  order,  or  decree;  in  all  other 
cases  it  shall  be  conclusive.     (As  amended  by  the  Act  of  March  25,  1899.) 

Sec.  4299.  To  apply  to  the  State  as  well  as  to  Private  Parties.  —  The  limita- 
tions prescribed  in  this  chapter  shall  apply  to  actions  brought  in  the  name  of 
this  State,  or  for  its  benefit,  in  the  same  manner  as  to  actions  by  private  parties. 

Sec.  4300.  Set-off.  &c. — When  a  defendant  in  action  has  interposed  an 
answer,  as  a  defense,  set-off,  or  counterclaim,  upon  which  he  would  be  entitled 
to  rely  in  such  action,  the  remedy  upon  which,  at  the  time  of  the  commence- 
ment of  such  action,  was  not  barred  by  law,  and  such  complaint  is  dismissed, 
or  the  action  is  discontinued,  the  time  which  intervened  between  the  commence- 
ment and  the  termination  of  such  action  shall  not  be  deemed  a  part  of  the  time 
limited  for  the  commencement  of  an  action  by  the  defendant  to  recover  for  the 
cause  of  action  so  interposed  as  a  defense,  set-off,  or  counterclaim. 


MONTANA. 

CODE  OF  CIVIL    PROCEDURE  (1895.) 
Title  II,  Chap.   i.  —  The  Time  of  commencing  Actions  in  General. 
Sec.  470.   Commencement  of  Civil  Actions.  — Civil  actions  can  only  be  com- 
menced within  the  periods  prescribed  in  this  title,  after  the  cause  of  action  shall 
have  accrued,  except  where,  in  special  cases,  a  different  limitation  is  prescribed 
by  statute. 


MONTANA.  745 

Chap.  2.  —  The  Time  for  commencing  Actions  for  the  Recovery  of  Real 

Property. 

Sec.  483.  Actions  to  recover  Real  Property,  Dower.  —  No  action  for  the 
recovery  of  real  property,  or  for  the  recovery  of  the  possession  thereof,  can  be 
maintained,  unless  it  appear  that  the  plaintiff,  his  ancesior,  predecessor,  or 
grantor,  was  seised  or  possessed  of  the  property  in  question  within  ten  years 
before  the  commencement  of  the  action.  No  action  for  the  recovery  of  dower 
can  be  maintained  by  a  widow  unless  the  action  is  commenced  within  ten  years 
after  the  death  of  her  husband. 

Sec.  484.  Same.  —  No  cause  of  action  or  defense  to  an  action,  arising  out  of 
the  title  to  real  property,  or  to  rents  or  profits  out  of  the  same,  can  be  effectual 
unless  it  appears  that  the  person  prosecuting  the  action  or  making  the  defense, 
or  under  whose  title  the  action  is  prosecuted  or  the  defense  is  made,  or  the 
ancestor,  predecessor,  or  grantor  of  such  person,  was  seised  or  possessed  of  the 
premises  in  question  within  ten  years  before  the  commencement  of  the  act  in 
respect  to  which  such  action  is  prosecuted  or  defense  made. 

Sec.  485.  After  Entry.  —  No  entry  upon  real  estate  is  deemed  sufficient  or 
valid  as  a  claim,  unless  an  action  be  commenced  thereupon  within  one  year 
after  making  such  entry,  and  within  ten  years  from  the  time  when  the  right  to 
make  it  descended  or  accrued 

Sec.  486.  Presumption  from  Legal  Title.  —  In  every  action  for  the  recovery 
of  real  property,  or  the  possession  thereof,  the  person  establishing  a  legal  title 
to  the  property  is  presumed  to  have  been  possessed  thereof,  within  the  time 
required  by  law,  and  the  occupation  of  the  property  by  any  other  person  is 
deemed  to  have  been  under  and  in  subordination  to  the  legal  title,  unless  it 
appear  that  the  property  has  been  held  and  possessed  adversely  to  such  legal 
title,  for  ten  years  before  the  commencement  of  the  action. 

Sec.  487.  Entry  and  Possession  under  Written  Title.  —  When  it  appears  that 
the  occupant,  or  those  under  whom  he  claims,  entered  into  the  possession  of 
the  property  under  claim  of  title,  exclusive  of  other  right,  founding  such  claim 
upon  a  written  instrument  as  being  a  conveyance  of  the  property  in  question, 
or  upon  the  decree  or  judgment  of  a  competent  court,  and  that  there  had  been 
a  continued  occupation  and  possession  of  the  property  included  in  such  instru- 
ment, decree,  or  judgment,  or  of  some  part  of  the  property  under  such  claim, 
for  ten  years,  the  property  so  included  is  deemed  to  have  been  held  adversely, 
except  that,  when  it  consists  of  a  tract  divided  into  lots,  the  possession  of  one 
lot  is  not  deemed  a  possession  of  any  other  lot  of  the  same  tract. 

Sec.  488.  Adverse  Possession  under  Written  Instrument,  &c. 

Sec.  489.  Adverse  Possession  under  Claim  of  Title  not  in  Writing. 

Sec.  494.  Mining  Claims.  —  No  action  for  the  recovery  of  mining  claims  Oode 
claims  excepted),  or  for  the  recovery  of  possession  thereof,  shall  be  maintained, 
unless  it  appear  that  the  plaintiff  or  his  assigns  was  seised  or  possessed  of  such 
mining  claim  within  one  year  before  the  commencement  of  such  action. 

Chap.  3. — Of    the    Time    of    commencing    Actions    other    than    for   the 

Recovery  of  Real  Property. 

Sec.  511.  Personal  Actions  upon  Contracts.  —  Actions  other  than  those  for 

the  recovery  of  real  property,  as  follows:    Within  ten  years:   1.   An  action  upon 

a  judgment   or   decree   of  any   court   of    record    of    the    United    Slates,  or   of 


746  STATUTES   OF   LIMITATION. 

any  State  within  the  United  States;  2.  An  action  for  mesne  profits  of  real 
property. 

Sec.  512.  Within  Eight  Years.  — An  action  upon  any  contract,  obligation,  or 
liability,  founded  upon  an  instrument  in  writing. 

Sec.  513.  Within  Five  Years.  —  1.  An  action  upon  a  contract,  account, 
promise,  obligation,,  or  liability,  not  founded  on  an  instrument  in  writing; 
2.  An  action  upon  a  liability  created  by  statute,  other  than  a  penalty  or  for- 
feiture; 3.  An  action  for  trespass  upon  real  property;  4.  An  action  for  taking, 
detaining,  or  injuring  any  goods  or  chattels,  including  actions  for  the  specific 
recovery  of  personal  property;  5.  An  action  for  relief  on  the  ground  of  fraud  or 
mistake,  the  cause  of  action  in  such  case  not  to  be  deemed  to  have  accrued 
until  the  discovery  by  the  aggrieved  party  of  the  facts  constituting  the  fraud  or 
mistake;  6.  An  action  to  establish  a  will.  Where  the  will  has  been  lost,  con- 
cealed, or  destroyed,  the  cause  of  action  is  not  deemed  to  have  accrued  until  the 
discovery,  by  the  plaintiff,  or  the  person  under  whom  he  claims,  of  the  facts 
upon  which  its  validity  depends;  7.  An  action  upon  a  judgment  or  decree 
rendered  in  a  cause  not  of  record.  The  cause  of  action,  in  such  case,  is  deemed 
to  have  accrued  when  the  final  judgment  was  rendered.  (As  amended  by  the 
Act  of  March  II,  1901.) 

Sec.  514.  Within  Three  Years.  —  An  action  against  a  sheriff,  coroner,  or  con- 
stable, upon  a  liability  incurred  by  the  doing  of  an  act  in  his  official  capacity, 
and  in  virtue  of  his  office,  or  by  the  omi?sion  of  an  official  duty,  including  the 
non-payment  of  money  collected  upon  an  execution.  But  this  subdivision  does 
not  apply  to  an  action  for  an  escape.  2.  An  action  to  recover  damages  for  the 
death  of  one  caused  by  the  wrongful  act  or  neglect  of  another.  (As  Amended  by 
the  Act  of  1901  above.) 

Sec.  515.  Within  Two  Years.  —  1.  An  action  upon  a  statute  for  a  penalty  or 
forfeiture,  when  the  action  is  given  to  an  individual,  or  to  an  individual  and  the 
State,  except  where  the  statute  imposing  it  prescribes  a  different  limitation; 
2.  An  action  upon  a  statute,  or  upon  an  undertaking  in  a  criminal  action,  for  a 
forfeiture  or  penalty  to  the  State;  3.  An  action  for  libel,  assault,  assault  and 
battery,  false  imprisonment,  or  seduction. 

Sec.  516.  Within  One  Year.  —  1.  An  action  against  a  sheriff,  or  other  officer, 
for  an  escape  of  a  prisoner,  arrested  or  imprisoned  on  civil  process;  2.  An  action 
against  a  municipal  corporation  for  damages  or  injuries  to  property  caused  by 
a  mob  or  riot;  or  by  a  municipal  corporation  for  the  violation  of  any  city  or 
town  ordinance;  3.  An  action  against  an  officer,  or  officer  de  facto,  to  recover  any 
goods,  wares,  merchandise,  or  other  property,  seized  by  any  such  officer  in  his 
official  capacity  as  tax  collector,  or  to  recover  the  price  or  value  of  any  goods, 
wares,  merchandise,  or  other  personal  property  so  seized,  or  for  damages  for 
the  seizure,  detention,  sale  of,  or  injury,  to  any  goods,  wares,  merchandise,  or 
other  personal  property  seized,  or  for  damages  done  to  any  person  or  property 
in  making  any  such  seizure. 

Sec.  517.  Within  Six  Months. —  1.  To  recover  stock  sold  for  a  delinquent 
assessment;  2.  Actions  on  claims  against  a  county,  which  have  been  rejected 
by  the  county  commissioners,  must  be  commenced  within  six  months  after  the 
first  rejection  thereof  by  such  board;  3.  For  killing  or  injuring  stock  by  a  rail- 
ration  or  company. 

Sec.  518.  Other  Actions.  —  An  action  for  relief  not  otherwise  hereinbefore 


NEBRASKA.  747 

provided,  must  be  commenced  within  five  years  after  the  cause  of  action  shall 
have  accrued. 

Sec.  519.  Mutual  and  Open  Accounts.  —  In  an  action  brought  to  recover  a 
balance  due  upon  a  mutual,  open,  and  current  account,  where  there  have  been 
reciprocal  demands  between  the  parties,  the  cause  of  action  is  deemed  to  have 
accrued  from  the  time  of  the  last  item   proved  in  the  account  on  eilher  side. 

Sec.  523.  Deposits  with  Bankers.  —  To  actions  brought  10  recover  money  or 
other  property  deposited  with  any  bank,  banker,  trust  company,  or  savings  and 
loan  corporation,  association  or  society,  there  is  no  limitation. 

Sec.  524.  An  action  for  waste  or  trespass  on  real  property,  provided  thai  when 
the  trespass  is  committed  by  reason  of  underground  works  upon  any  mining 
claim,  the  cause  of  action  shall  not  be  deemed  to  have  accrued  until  the  dis- 
covery by  the  aggrieved  party  of  the  facts  constituting  such  waste  or  trespass; 

2.  An  action  for  a  liability  created  by  statute,  other  than  a  penalty  or  forfeiture; 

3.  An  action  for  taking,  detaining  or  injuring  any  goods  or  chattels,  including 
actions  for  the  specific  recovery  of  personal  property;  4.  An  action  for  relief  on 
the  ground  of  fraud  or  mistake  (the  cause  of  action  in  such  case  not  to  be 
deemed  to  have  accrued  until  the  discovery  by  the  aggrieved  party  of  the  facts 
constituting  fraud  or  mistake),  shall  be  commenced  within  two  years.  (Act 
approved  March  9,  1893.) 


NEBRASKA. 
COMPILED  STATUTES,  1881  (9TH  ed.,  1899.)     Part  2,  Title  2. 

5595.  Sec.  5.  Limitation.  —  Civil  actions  can  only  be  commenced  within  the 
time  prescribed  in  this  title,  after  the  cause  of  action  shall  have  accrued. 

5596.  Sec.  6.  Recovery  of  Real  Property  —  Mortgages.  —  An  action  for  the 
recovery  of  the  title  or  possession  of  lands,  tenements,  or  hereditaments,  can 
only  be  brought  within  ten  years  after  the  cause  of  such  action  shall  have 
accrued.  This  section  shall  be  construed  to  apply  also  to  mortgages.  Pro- 
vided, however,  that  there  shall  be  no  limitation  to  the  time  within  which  any 
county,  city,  town,  village  or  municipal  corporation  may  begin  an  action  for 
the  recovery  of  the  title  or  possession  of  any  public  road,  street,  alley  or  other 
public  grounds  or  city  or  town  lots. 

5597.  Sec.  7.  Persons  under  Disability.  —  Any  person  entitled  to  commence 
any  action  for  the  recovery  of  the  title  or  possession  of  any  lands,  tenements, 
or  hereditaments,  who  may  be  under  any  legal  disability  when  the  cause  of 
action  accrues,  may  bring  such  action  within  ten  years  after  the  disability  is 
removed,  and  at  no  time  thereafter. 

5598.  Sec.  S.  Forcible  Entry  and  Detainer.  —  An  action  for  the  forcible  entry 
and  detainer,  or  forcible  detainer  only,  of  real  property,  can  only  be  brought 
within  one  year  after  the  cause  of  such  action  shall  have  accrued. 

5599.  Sec.  9.  Other  Civil  Actions.  —  Civil  actions,  other  than  for  the  recovery 
of  real  property,  can  only  be  brought  within  the  following  periods  after  the 
cause  of  action  shall  have  accured:  — 

5600.  Sec.  10.  Written  Instruments.  Foreign  Judgment. — Wilhin  five  years- 
An  action  upon  a  specialty,  or  any  agreement,  contract,  or  promise  in  writing, 
or  foreign  judgment. 


748  STATUTES   OF   LIMITATION. 

5601.  Sec.  11.  Parol  Contract.  —  Within  four  years:  An  action  upon  aeon- 
tract,  not  in  writing,  expressed  or  implied;  an  action  upon  a  liability  enacted 
by  statute,  other  than  a  forfeiture  or  penalty. 

5602.  Sec.  12.  Trespass  to  Realty.  Personalty.  Replevin.  Torts.  Fraud. 
—  Within  four  years:  An  action  for  trespass  upon  real  property;  an  action  for 
taking,  detaining,  or  injuring  personal  property,  including  actions  for  the 
specific  recovery  of  personal  property;  an  action  for  an  injury  to  the  rights  of 
the  plaintiff,  notarising  on  contract,  and  not  hereinafter  enumerated;  an  action 
for  relief  on  the  ground  of  fraud,  but  the  cause  of  action  in  such  case  shall  not 
[be]  deemed  to  have  accrued  until  the  discovery  of  the  fraud. 

5603.  Sec.  13.  Injury  to  Character  —  Assault  —  Malicious  Prosecution — False 
Imprisonment  —  Penalty.  —  Within  one  year:  An  action  for  libel,  slander, 
assault  and  battery,  malicious  prosecution  or  false  imprisonment;  an  action 
upon  a  statute  for  a  penalty  or  forfeiture,  but  where  the  statute  giving  such 
action  prescribes  a  different  limitation,  the  action  may  be  brought  within  the 
period  so  limited. 

6504.  Sec.  14.  Official  Bond  —  Undertaking. — An  action  upon  the  official 
bond  or  undertaking  of  an  executor,  administrator,  guardian,  sheriff,  or  any 
other  officer,  or  upon  the  bond  or  undertaking  given  in  attachment,  injunction, 
or  in  any  case  whatever  required  by  statute,  can  only  be  brought  within  ten  years. 

5605.  Sec.  15.  Contract  —  Failure  of  Consideration.  —  Actions  brought  for 
damages  growing  out  of  the  failure  or  want  of  consideration  of  contracts, 
express  or  implied,  or  for  the  recovery  of  money  paid  upon  contracts,  express 
or  implied,  the  consideration  of  which  has  wholly  or  in  part  failed,  shall  be 
brought  within  four  years. 

5606.  Sec.  16.  Other  Relief.  —  An  action  for  relief  not  hereinbefore  provided 
for.  can  only  be  brought  within  four  years  after  the  cause  of  action  shall  have 
accrued. 

560S.  Sec.  18.  Actions  barred  by  Laws  of  Other  States.  —  All  actions,  or  causes 
of  action,  which  are  or  have  been  barred  by  the  laws  of  this  State,  or  any  State 
or  Territory  of  the  United  States,  shall  oe  deemed  barred  by  the  laws  of  this 
State. 

5612.  Sec.  21.  Actions  barred  by  Laws  of  other  State.  —  When  a  cause  of 
action  has  been  fully  barred  by  the  laws  of  any  State  or  country  where  the 
defendant  had  previously  resided,  such  bar  shall  be  the  same  defense  in  this 
State  as  though  it  had  arisen  under  the  provisions  of  this  title. 


NEVADA. 

COMPILED  LAWS  (1900,  by  Cutting.)     Chap.  20,  Title  18. 

3700.  Sec.  4.  Action  fcr  Recovery  of  Mining  Claims.  —  No  action  for  the 
recovery  of  mining  claims,  or  for  the  recovery  of  possession  thereof,  shall  be 
maintained,  unless  it  appear  that  the  plaintiff,  or  those  through  or  from  whom 
laims,  were  seised  or  possessed  of  such  mining  claim,  or  were  the  owners 
thereof,  ai  1  or  ling  k,  the  laws  and  customs  of  the  district  embracing  the  same, 
within  two  yean  before  the  commencement  of  such  action.  Occupation  and 
advei  ion  of  a  mining  claim  shall  consist  in  holding  and  working  the- 


NEVADA.  749 

same  in  the  usual  and  customary  mode  of  holding  and  working  similar  claims 
in  the  vicinity  thereof.  All  the  provisions  of  this  act  which  apply  to  other  real 
estate,  so  far  as  applicable,  shall  be  deemed  to  include  and  apply  to  mining 
claims:  Provided,  that  in  such  application  "  two  years  "  shall  be  held  to  be  the 
period  intended  whenever  the  term  "  five  years  "  is  used;  And  provided,  fur thet, 
that  when  the  terms  "  legal  title  "  or  "  title  "  are  used,  they  shall  be  held  to 
include  title  acquired  by  location  or  occupalion,  according  to  the  usages,  laws, 
and  customs  of  the  district  embracing  the  claim. 

3707.  Sec.  5.  Recovery  of  Real  Property.  —  No  cause  of  action  or  defense  to 
an  action,  founded  upon  the  title  to  real  property,  or  to  rents,  or  to  services  out 
of  the  same,  shall  be  effectual,  unless  it  appear  that  the  person  prosecuting  the 
action  or  making  the  defense,  or  under  whose  title  the  action  is  prosecuted,  or 
the  defense  is  made,  or  the  ancestor,  predecessor,  or  grantor  of  such  person, 
was  seised  or  possessed  of  the  premises  in  question  within  five  years  before  the 
committing  of  the  act  in  respect  to  which  such  action  is  prosecuted  or  defense 
made. 

3708.  Sec.  6.  Peaceable  entry  not  valid  as  claim.  —  No  peaceable  entry  upon 
real  estate  shall  be  deemed  sufficient  and  valid  as  a  claim,  unless  an  action  be 
commenced  bv  the  plaintiff  for  possession  within  one  year  from  the  making  of 
such  entry,  or  within  five  years  from  the  time  when  the  right  to  bring  such 
action  accrued. 

3709.  Sec.  7.  Establishing  Legal  Title  —  Adverse  Possession.  —  In  every  action 
for  the  recovery  of  real  property,  or  the  possession  thereof,  the  person  estab- 
lishing a  legal  title  to  the  premises  shall  be  presumed  to  have  been  possessed 
thereof  within  the  time  prescribed  by  law;  and  the  occupation  of  such  premises 
by  any  other  person  shall  be  deemed  to  have  been  under  and  in  subordination 
to  the  legal  title,  unless  it  appear:  (1)  That  it  has  been  protected  by  a  sub- 
stantial enclosure;  or,  (2),  That  it  has  been  cultivated  or  improved  in  accord- 
ance with  the  usual  and  ordinary  methods  of  husbandry;  provided,  that  in  no 
case  shall  adverse  possession  be  considered  established  unless  it  is  shown,  in 
addition  to  the  above  requirements,  that  the  land  has  been  occupied  and  claimed 
for  the  period  uf  five  years,  continuously,  and  that  the  party  or  persons,  their 
predecessors  and  grantors,  have  paid  all  taxes,  State,  county  and  municipal, 
which  may  have  been  levied  and  assessed  against  such  land  for  the  period  above 
meniioned. 

3710.  Sec.  8.  Claim  under  Conveyance.  —  Whenever  it  shall  appear  that  the 
occupant,  or  those  under  whom  he  claims,  entered  into  the  possession  of 
premises  under  claim  of  title,  exclusive  of  any  other  right,  founding  such  claim 
upon  a  written  instrument,  as  being  a  conveyance  of  the  premises  in  question, 
or  upon  the  decree  or  judgment  of  a  competent  court,  and  that  there  has  been 
a  continued  occupation  and  possession  of  the  premises  included  in  such  instru- 
ment, decree,  or  judgment,  or  of  some  part  of  such  premises,  under  such  claim, 
tor  five  years,  the  premises  so  included  shall  be  deemed  to  have  been  held 
adversely,  except  that  where  the  premises  so  included  consist  of  a  tract  divided 
into  lots,  the  possession  of  one  lot  shall  not  be  deemed  a  possession  of  any 
other  lot  of  this  same  tract. 

3711-3713.  Sees.  9-1 1.  Adverse  Possession  defined. 

3718.  Sec.  16.  [1.]  Actions  other  than  for  Recovery  of  Real  Property.  — 
Actions  other  than  those  for  the  recovery  of  real  property  can  only  be  com- 
menced as  follows. 


750  STATUTES   OF   LIMITATION. 

Within  six  years:  —  First.  An  action  upon  a  judgment  or  decree  of  any  court 
of  the  United  States,  or  of  any  State  or  Territory  within  the  United  States; 
Second.  An  action  upon  any  contract,  obligation,  or  liability,  founded  upon  an 
instrument  in  writing,  except  those  mentioned  in  the  preceding  section. 

Within  four  years: — First.  An  action  on  an  open  account  for  goods,  wares, 
and  merchandise  sold  and  delivered;  Second.  An  action  for  any  article  chatged 
in  a  store  account;  Third.  An  action  upon  a  contract,  obligation,  or  liability, 
not  founded  upon  an  instrument  of  writing. 

Within  three  years:  —  First.  An  action  upon  a  liability  created  by  statute, 
other  than  a  penalty  or  forfeiture;  Second.  An  action  for  trespass  upon  real 
property;  Third.  An  action  for  taking,  detaining,  or  injuring  any  goods  or 
chattels,  including  actions  for  the  specific  recovery  of  personal  property;  Fourth. 
An  action  for  relief,  on  the  ground  of  fraud;  the  cause  of  action  in  such  case 
not  to  be  deemed  to  have  accrued  until  the  discovery  by  the  aggrieved  party  of 
the  facts  constituting  the  fraud. 

Within  two  years:  —  First.  An  action  against  a  sheriff,  coroner,  or  constable, 
upon  the  liability  incurred  by  the  doing  of  an  act  in  his  official  capacity  and  in 
virtue  of  his  office,  or  by  the  omission  of  an  official  duty,  including  the  non- 
payment of  money  collected  upon  an  execution;  Second.  An  action  upon  a  statute 
for  a  penalty  or  forfeiture,  where  the  action  is  given  to  an  individual,  or  an 
individual  and  the  State,  except  where  the  statute  imposing  it  prescribes  a 
different  limitation;  Third.  An  action  for  libel,  slander,  assault,  battery,  or 
false  imprisonment;  Fourth.  An  action  upon  a  statute  for  a  forfeiture  or  penalty 
to  the  State;  Fifth.  An  action  against  a  sheriff,  or  other  officer,  for  the  escape 
of  a  prisoner  arrested  or  imprisoned  on  civil  process. 

3722.  Sec.  iS.  Other  Actions  for  Relief.  —  An  action  for  relief,  not  hereinbe- 
fore provided  for,  must  be  commenced  within  four  years  after  the  cause  of  action 
shall  have  accrued. 

3735.  Sec.  32.  Action  on  Contract  made  out  of  the  State.  —  An  action  upon  a 
judgment,  contract,  obligation,  or  liability,  for  the  payment  of  money  or  dam- 
ages obtained,  made,  executed,  or  incurred  out  of  the  State,  can  only  be  com- 
menced as  follows:  —  First.  Within  one  year,  when  prior  to  the  passage  of  this 
act  more  than  two,  or  less  than  five  years  have  elapsed  since  the  cause  of  action 
accrued;  Second.  Within  six  months,  when  prior  to  the  passage  of  this  act  more 
than  five  years  have  elapsed  since  the  cause  of  action  accrued;  Third.  Within 
two  years,  in  all  other  cases,  after  the  cause  of  action  accrued.  A  right  of 
action  shall  be  deemed  to  have  accrued  on  a  judgment  at  the  time  of  its 
rendition. 

3736.  Sec.  33.  When  Action  barred  abroad.  —  When  the  cause  of  action  has 
arisen  in  any  other  State  or  Territory  of  the  United  States,  or  in  a  foreign 
country,  and  by  the  laws  thereof  an  action  there  cannot  be  maintained  against 
a  person  by  reason  of  the  lapse  of  time,  no  action  thereon  shall  be  maintained 
against  him  in  this  State. 

3738.  Sec.  1.  Actions  for  Real  Property.  —  No  action  for  the  recovery  of  real 
property,  or  for  the  recovery  of  the  possession  thereof,  other  than  mining  claims, 
shall  be  maintained,  unless  it  appear  that  the  plaintiff,  his  ancestor,  predecessor, 
(.1  grantor  was  seised  or  possessed  of  the  premises  in  question,  within  five  ye  a  r  s 
before  the  commencement  thereof.     {Approved  Feb.  2j,  iS6g.) 


NEW    HAMPSHIRE  —  NEW   JERSEY.  75  I 

NEW   HAMPSHIRE. 

PUBLIC  STATUTES,  1891.     Chap.  217. 

Sec.  1.  Real  Actions.  —  No  action  for  the  recovery  of  real  estate  shall  be 
brought  after  twenty  years  from  the  time  the  right  to  recover  first  accrued  to  the 
party  claiming  it,  or  to  some  peison  under  whom  he  claims. 

Sec.  2.  After  Disability.  —  If  the  person  first  entitled  to  bring  such  action  is 
an  infant,  a  married  woman,  or  insane,  at  the  time  the  right  accrues,  the  action 
may  be  brought  within  Jive  years  after  such  disability  is  removed. 

Sec.  3.  Personal.  — Actions  of  trespass  to  the  person  and  actions  for  defama- 
tory words  may  be  brought  within  two  years,  and  all  other  personal  actions 
within  six  years  after  the  cause  of  action  accrued,  and  not  afterward. 

Sec.  4.  Debt  on  Judgments,  &c.  — Actions  of  debt  upon  judgments,  recog- 
nizances, and  contracts  under  seal  may  be  brought  within  twenty  years  after  the 
cause  of  action  accrued,  and  not  afterward. 

Sec.  5.  On  Mortgage  Notes.  —  Actions  upon  notes  secured  by  mortgage  of 
real  estate  may  be  brought  so  long  as  the  plaintiff  is  entitled  to  bring  an  action 
upon  the  mortgage. 

Sec.  6.  Writs  of  Error.  — Writs  of  error  may  be  sued  out  within  three  years 
after  judgment,  and  not  afterward,  unless  allowed  by  the  court  for  sufficient 
cause,  upon  petition  and  notice. 

Sec.  7.  Disability.  —  Any  infant,  married  woman,  or  insane  person  may  bring 
any  personal  actions  within  two  years  after  such  disability  is  removed. 

Sec.  8.  Absence.  —  If  the  defendant  in  a  personal  action  was  absent  from  or 
residing  out  of  the  State  at  the  time  when  the  cause  of  action  accrued,  or  after- 
ward, the  time  of  such  absence  shall  be  excluded  in  computing  the  time  limited 
for  bringing  the  action. 

Sec.  9.  When  Judgment  is  against  Plaintiff.  —  If  judgment  is  rendered  against 
the  plaintiff  in  any  action  brought  within  the  time  limited  therefor,  or  upon  a 
writ  of  error  thereon,  and  the  right  of  action  is  not  barred  by  the  judgment,  a 
new  action  may  be  brought  thereon  in  one  year  after  the  judgment. 

Sec.  10.  Not  when  Different  Time.  —  The  provisions  of  this  chapter  shall  not 
apply  to  cases  in  which  a  different  time  is  limited  by  statute. 

By  Chap.  244,  Sec.  7.  an  Action  for  Wilful  Trespass  in  cutting  trees,  timber, 
etc.,  must  be  brought  within  two  years. 


NEW  JERSEY. 

2  General  Statutes  (1895),  p.  1972. 
Limitation  of  Actions. 

By  the  Act  of  1787,  actual  and  continuous  possession  of  real  estate  for  sixty 
years  gave  a  good  title,  and  thirty  years  was  a  bar  in  the  case  of  recorded  prop- 
erty rights. 

Sec.  1.  Actions  'within  Six  Years.  —  All  actions  of  trespass  quare  clausum 
fregit,  all  actions  of  trespass,  detinue,  trover,  and  replevin  for  taking  away  of 


752  STATUTES   OF    LIMITATION. 

goods  and  chattels,  all  actions  of  debt,  founded  upon  any  lending  or  contract 
without  specialty,  or  for  arrearages  of  rent  due  on  a  parol  demise,  and  all  actions 
of  account  and  upon  the  case,  except  actions  for  slander,  and  except,  also, 
such  actions  as  concern  the  trade  or  merchandise  between  merchant  and 
merchant,  their  factors,  agents,  and  servants. 

Sec.  2.  Within  Four  Years.  —  All  actions  of  trespass  for  assault,  menace, 
battery,  wounding,  and  imprisonment,  or  any  of  them,  shall  be  commenced  and 
sued  within  four  years  next  after  the  cause  of  such  action  shall  have  accrued 
and  not  afler. 

Sec.  3.  For  Words.  —  Every  action  upon  the  case  for  words  shall  be  com- 
menced and  sued  within  two  years  next  after  the  words  spoken,  and  not  after, 
and  all  aclions  hereafter  accruing  for  injuries  to  persons  caused  by  the  wrong- 
ful act,  neglect,  or  default  of  any  person  or  persons,  firm  or  firms,  individual 
or  individuals,  corporation  or  corporations,  within  this  State,  shall  be  com- 
menced within  two  years  next  after  the  cause  of  such  action  shall  have  accrued 
and  not  after.     {As  amended  by  the  Act  of  March  24,  1896.) 

Sec.  4.  Against  whom  not  to  run.  —  If  any  person  or  persons  who  is,  are,  or 
shall  be  entitled  to  any  of  the  actions  specified  in  the  three  preceding  sections 
of  this  act,  is,  are,  or  shall  be,  at  the  time  of  any  such  cause  of  action  accruing, 
within  the  age  of  twenty-one  years,  or  insane,  that  then  such  person  or  persons 
shall  be  at  liberty  to  bring  the  said  action  so  as  he,  she,  or  they  institute  or  take 
the  same  within  such  time  as  is  before  limited,  after  his,  her,  or  their  coming 
to  or  being  of  full  age,  or  of  sane  memory,  as  by  other  person  or  persons  hav- 
ing no  such  impediment  might  be  done. 

Sec.  5.  {As  amended  P.  L.  1883,/.  33.)  Nine  Years  ;  Sheriffs',  Constables'  and 
Collectors'  Bonds. 

Sec.  6.  Sealed  Instruments.  —  Every  action  of  debt  or  covenant  for  rent  or 
arrearages  of  rent,  founded  upon  any  lease  under  seal,  whether  indented  or 
poll,  and  every  action  of  debt  upon  any  single  or  penal  bill  for  the  payment 
of  money  only,  or  upon  any  obligation  with  condition  for  the  payment  of  money 
only,  or  upon  any  award  under  the  hands  and  seals  of  arbitrators  for  the  pay- 
ment of  money  only,  shall  be  commenced  and  sued  within  sixteen  years  next 
after  the  cause  of  such  action  shall  have  accrued,  and  not  after;  but  if  any  pay- 
ment shall  have  been  made  on  any  such  lease,  specialty,  or  award,  within  or 
after  the  said  period  of  sixteen  years,  then  an  action  instituted  on  such  lease, 
specialty,  or  award,  within  sixteen  years  after  such  payment,  shall  be  good  and 
effectual  in  law,  and  not  after:  Provided  always,  the  time  during  which  the  per- 
son who  is  or  shall  be  entitled  to  any  of  the  actions  specified  in  this  section 
shall  have  been  within  the  age  of  twenty-one  years,  or  insane,  shall  not  be 
taken  or  computed  as  part  of  the  said  limited  period  of  sixteen  years. 

Sec.  7.  Judgments.  — Judgments  in  any  court  of  record  of  this  State  may  be 
revived  by  scire  facias,  or  an  action  of  debt  may  be  brought  thereon  within 
■  years  next  after  the  date  of  such  judgment,  and  not  after:  Provided, 
that  the  time  dur.ng  which  the  person  who  is  or  shall  be  entitled  to  the  benefit 
of  such  judgment  shall  have  been  under  the  age  of  twenty-one  years,  or  insane, 
shall    not   be   taken  or  computed  as  part  of   the  said  limited  period  of   twenty 

Sec.  12.  Set-off.  —  That  this  act  shall  be  deemed  and  taken  to  apply  to  the 
case  of  any  debt  on  simple  contract  alleged  by  way  of  set-off  on  the  part  of  the 
.'  >fendaot. 


new  Mexico.  753 

Sec.  16.  Right  of  Entry,  barred  in  Twenty  Years. 

Sec.  17.  Actions  for  Lands.  —  Every  real,  possessory,  ancestral,  mixed  or 
-other  action,  for  any  lands,  tenements,  or  hereditaments,  shall  be  brought  or 
instituted  within  twenty  years  next  after  the  right  or  title  thereto,  or  cause  of 
such  action,  shall  accrue,  and  not  after:  Provided  always,  that  the  time  during 
which  the  person  who  hath  or  shall  have  such  right  or  title,  or  cause  of  action, 
shall  have  been  under  the  age  of  twenty-one  years,  or  insane,  shall  not  be 
taken  or  computed  as  part  of  the  said  limited  period  of  twenty  years. 

Sec.  18  Equity  of  Redemption.  —  If  a  mortgagee,  and  those  under  him,  be 
in  possession  of  the  lands,  tenements,  and  hereditaments  contained  in  the  mort- 
gage, or  any  part  thereof,  for  twenty  years  after  default  of  payment  by  the  mort- 
gagor, then  the  right  or  equity  of  redemption  therein  shall  be  forever  barred. 


NEW  MEXICO. 

COMPILED  LAWS,   1884.  Title  33,  Chap.   2. 

Sec.  i860.  The  following  suits  or  actions  may  be  brought  within  the  time 
hereinafter  limited,  respectively,  after  their  causes  accrue,  and  not  afterwards, 
except  when  otherwise  specially  provided:  — 

Sec.  1861.  On  Judgments  of  Courts  of  Record,  Fifteen  Years. — Actions 
upon  any  judgment  of  any  court  of  record  of  any  State  or  Territory  of  the 
United  States,  or  the  federal  courts  of  the  United  States. 

Sec.  1862.  Bonds,  Notes,  &c,  Six  Years.  —  Those  founded  upon  any  bond, 
promissory  note,  bill  of  exchange,  or  other  contract  in  writing,  or  upon  any 
judgment  of  any  court  not  of  record. 

Sec.  1863.  Accounts,  &c,  Four  Years. — Those  founded  upon  accounts  and 
unwritten  contracts,  those  brought  for  injuries  to  property,  or  for  the  conversion 
of  personal  property,  or  for  relief  upon  the  ground  of  fraud,  and  all  other 
actions  not  herein  otherwise  provided  for  and  specified. 

Sec.  1864.  Sureties  on  Official  Bonds,  Two  Years.  —  Those  against  sureties 
upon  official  bonds,  and  those  brought  against  sheriffs  and  other  public  officers 
for  or.on  account  of  any  liability  incurred  by  the  doing  of  any  act  in  an  official 
capacity,  or  by  the  omission  of  any  official  duty,  and  for  injuries  to  the  person 
or  reputation. 

Sec.  1865  Fraud.  —  In  actions  for  relief  on  the  ground  of  fraud  or  mistake, 
and  in  actions  for  injuries  to  or  conversion  of  property,  the  cause  of  action 
shall  not  be  deemed  to  have  accrued  until  the  fraud,  mistake,  injury,  or  con- 
version complained  of  shall  have  been  discovered  by  the  party  aggrieved. 

Sec.  1866.  Account,  at  last  Item.  —  When  there  is  an  open  current  account 
the  cause  of  action  shall  be  deemed  to  have  accrued  upon  the  date  of  the  last 
item  therein,  as  proven  on  the  trial. 

Sec.  1S74.  Set-off.  A  set-off  or  counterclaim  may  be  pleaded  as  a  defense  to 
any  cause  of  action,  notwithstanding  such  set-off  or  counterclaim  may  be  barred 
by  the  provisions  of  this  act,  if  such  set-off  or  counterclaim  so  pleaded  was  the 
property  or  right  of  the  party  pleading  the  same  at  the  time  it  became  barred 
and  at  the  time  of  the  commencement  of  the  action,  and  the  same  was  not 
barred  at  the  time  the  cause  of  action  sued  for  accrued  or  originated;  but  no 
[stats,  of  lim.  —  48.] 


754  STATUTES   OF   LIMITATION. 

judgment  for  any  excess  of  such  set-off  or  counterclaim  over  the  demand  of  the 
plaintiff  as  proven  shall  be  rendered  in  favor  of  the  defendant. 

Sec.  1878.  Accounts.  —  Accounts  duly  verified  by  the  oath  of  the  paity  claim- 
ing the  same,  or  his  agent,  and  promissory  notes  and  other  instruments  in 
writing,  not  barred  by  the  provisions  of  this  act,  shall  be  sufficient  evidence  in 
any  suit  to  enable  the  plaintiff  to  recover  judgment  for  the  amount  thereof, 
unless  the  defendant  or  his  agent  shall  deny  the  same  under  oath. 

Sec.  18S0.  Ten  Years'  Possession  gives  Title.  —  Where  any  person  or  persons, 
their  children,  heirs,  or  assigns,  shall,  at  the  passing  of  this  act  or  at  any  time 
after,  have  had  possession  for  ten  years  of  any  lands,  tenements,  or  heredita- 
ments, which  have  been  granted  by  the  governments  of  Spain,  Mexico,  or  the 
United  States,  or  by  whatsoever  authority  empowered  by  said  governments  to 
make  grants  to  lands,  holding  or  claiming  the  same  by  virtue  of  a  deed  or  deeds 
of  conveyance,  devise,  grant,  or  other  assurance  purporting  to  convey  an  estate 
in  fee-simple,  and  no  claim  by  suit  in  law  or  equity  effectually  prosecuted  shall 
have  been  set  up  or  made  to  the  said  lands,  tenements,  or  hereditaments,  within 
the  aforesaid  time  of  ten  years,  etc. 

Sec.  1SS1.  Ten  Years  after  Accrual,  &c.  —  No  person  or  persons,  or  their 
children,  heirs,  or  assigns,  shall  have  or  maintain  any  action  or  suit,  either  in 
law  or  equity,  for  any  lands,  tenements,  or  hereditaments  but  within  ten  years 
next  after  his,  her,  or  their  right  to  commence,  have,  or  maintain  such  suit  shall 
have  come,  fallen,  or  accrued,  and  that  all  suits  either  in  law  or  equity  for  the 
recovery  of  any  lands,  tenements,  or  hereditaments  shall  be  had  and  sued 
within  ten  years  next  after  the  title  or  cause  of  action  or  suits  accrued  or  fallen, 
and  at  no  time  after  the  ten  years  shall  have  passed:  Provided,  etc. 

By  the  Acts  of  1897,  chap.  73,  sec.  66,  a  party  is  not  to  be  deprived  of  the 
defense  of  the  statute  of  limitations,  when  pleaded  by  him,  because  of  his  not 
denying  the  facts  set  forth  in  the  adverse  pleadings. 


NEW  YORK. 

CODE  OF  CIVIL  PROCEDURE. 

Chap.  IV.  —  LIMITATION    OF    THE    TIME    OF    ENFORCING    A    CIVIL 

REMEDY. 

Title      I.  —  Actions  for  the  Recovery  of  Real  Property. 

Title    II.  —  Actions  other  than  for  the  Recovery  of  Real  Property. 

Title  III.  —  General  Provisions. 

Title  I.  — Actions  for  the  Recovery  of  Real  Property. 

Sec.  362.  When  the  People  •will  not  sue.  —  The  people  of  the  State  will  not 
sue  a  person  for  or  with  respect  to  real  property,  or  the  issue  or  profits  thereof, 
by  reason  of  the  right  or  title  of  the  people  to  the  same,  unless  either, 

1.  The  cause  of  action  accrued  within  forty  years  before  the  action  is  com- 
menced; or, 

2.  The  people,  or  those  from  whom  they  claim,  have  received  the  rents  and 
profits  of  the  real  property,  or  of  some  part  thereof,  within  the  same   period  of 

imc. 


NEW    YORK.  755 

Sec.  365.  Seisin  within  Twenty  Years,  when  necessary,  &c.  —  An  action  to 
recover  real  property,  or  the  possession  thereof  cannot  be  maintained  by  a 
party,  other  than  the  people,  unless  the  plaintiff,  his  ancestor,  predecessor,  or 
grantor,  was  seised  or  possessed  of  the  premises  in  question,  within  twenty  years 
before  the  commencement  of  the  action. 

Sec.  366.  The  Same.  —  A  defense  or  counterclaim,  founded  upon  the  title  to 
real  property,  or  to  rents  or  services  out  of  the  same,  is  not  effectual,  unless  the 
person  making  it,  or  under  whose  title  it  is  made,  or  his  ancestor,  predecessor, 
or  grantor,  was  seised  or  possessed  of  the  premises  in  question,  within  twenty 
years  before  the  committing  of  the  act,  with  respect  to  which  it  is  made. 

Sec.  367.  Action  after  Entry.  —  An  entry  upon  real  property  is  not  sufficient 
or  valid  as  a  claim,  unless  an  action  is  commenced  thereupon,  within  one  year 
after  the  making  thereof,  and  within  twenty  years  after  the  time  when  the  right 
to  make  it  descended  or  accrued. 

Sees.  368-372.  Possession,  when  presumed  ;  Adverse  Possession. 

Title  II.  — Actions  other  than  for  the  Recovery  of  Real  Property. } 

Sec.  376.  [Amended,  1877,  ch.  416;  1894,  ch.  307.]  When  Satisfaction  of 
Judgment  presumed.  —  A  final  judgment  or  decree  for  a  sum  of  money,  or 
directing  the  payment  of  a  sum  of  money,  heretofore  rendered  in  a  surrogate's 
court  of  the  State,  or  heretofore  or  hereafter  rendered,  in  a  court  of  record 
within  the  United  States,  or  elsewhere,  or  hereafter  docketed  pursuant  to  the 
provisions  of  Sec.  3017  of  this  Act,  is  presumed  to  be  paid  and  satisfied,  after 
the  expiration  of  ttventy years  from  the  time  when  the  party  recovering  it  was 
first  entitled  to  a  mandate  to  enforce  it.  This  presumption  is  conclusive,  except 
as  against  a  person,  who,  within  ttventy  years  from  that  time,  makes  a  payment 
or  acknowledges  an  indebtedness  of  some  part  of  the  amount  recovered  by  the 
judgment  or  decree,  or  his  heir  or  personal  representatives,  or  a  person  whom 
he  otherwise  represents.  Such  an  acknowledgment  must  be  in  writing,  and 
signed  by  the  person  to  be  charged  thereby. 

Sec.  377.  Effect  of  Return  of  Execution. —  If  the  proof  of  payment,  under 
the  last  section,  consists  of  the  return  of  an  execution  partly  satisfied,  the 
adverse  party  may  show,  in  full  avoidance  of  the  effect  thereof,  that  the  alleged 
partial  satisfaction  did  not  proceed  from  a  payment  made,  or  a  sale  of  property 
claimed,  by  him,  or  by  a  person  whom  he  represents. 

Sec.  378.  How  presumption  raised.  —  A  person  may  avail  himself  of  the  pre- 
sumption created  by  the  last  section  but  one,  under  an  allegation  that  the  action 
was  not  commenced,  or  that  the  proceeding  was  not  taken,  within  the  time 
therein  limited. 

Sec.  379.  Limitation  of  Action  to  redeem  from  a  Mortgage.  —  An  action  to 
redeem  real  property  from  a  mortgage,  with  or  without  an  account  of  rents  and 
profits,  may  be  maintained  by  the  mortgagor,  or  those  claiming  under  him, 
against  the  mortgagee  in  possession,  or  those  claiming  under  him,  unless  he  or 
they  have   continuously   maintained  an  adverse  possession  of  the  mortgaged 

1  An  action  for  negligence  against  a  city  having  50,000  inhabitants  must  be  brought  within  one 
year  after  the  injury.     L.  1886,  chap.  572. 

An  action  on  a  constable's  bond  must  be  brought  within  two  years  after  expiration  of  the  year 
for  which  he  is  elected. 

An  action  for  damages  from  mobs  must  be  brought  within  three  months  after  the  loss  or  injury. 

An  action  to  recover  excessive  fare,  etc.,  must  be  brought  within  one  year  from  the  taking. 

An  action  to  recover  for  usury  must  be  brought  within  one  year  after  the  payment. 


756  STATUTES   OF   LIMITATION. 

premises,  for  tiventy years  after  the  breach  of  a  condition  of  the  mortgage,  or 
the  non  fulfilment  of  a  covenant  therein  contained. 

Sec.  380.  Other  Periods  of  Limitation.  —  The  following  actions  must  be  com- 
menced within  the  following  periods,  after  the  cause  of  action  has  accrued. 

Sec.  3S1.  [Amended,  1877,  ch.  416. J  Within  Twenty  years.  —  An  action 
upon  a  sealed  instrument. 

But  where  the  action  is  brought  for  breach  of  a  covenant  of  seisin,  or  against 
incumbrances,  the  cause  of  action  is,  for  the  purposes  of  this  section  only, 
deemed  10  have  accrued  upon  an  eviction,  and  not  before. 

Sec.  382.  [Amended  1877,  ch.  416,  422,  1894,  ch.  308.]  Within  Six  Years. 
—  1.  An  action  upon  a  contract  obligation  or  liability,  express  or  implied; 
except  a  judgment  or  sealed  instrument. 

2.  An  action  to  recover  upon  a  liability  created  by  statute;  except  a  penalty 
or  forfeiture. 

3.  An  action  to  recover  damages  for  an  injury  to  property,  or  a  personal 
injury;  except  in  a  case  where  a  different  period  is  expressly  prescribed  in  this 
chapter. 

4.  An  action  to  recover  a  chattel. 

5.  An  action  to  procure  a  judgment,  other  than  for  a  sum  of  money,  on  the 
ground  of  fraud,  in  a  case  which,  on  December  31,  1S46,  was  cognizable  by  the 
Court  of  Chancery.  The  cause  of  action,  in  such  a  case,  is  not  deemed  to  have 
accrued  until  the  discovery  by  the  plaintiff,  or  the  person  under  whom  he  claims, 
of  the  facts  constituting  the  fraud. 

6.  An  action  to  establish  a  will.  Where  the  will  has  been  lost,  concealed,  or 
destroyed,  the  cause  of  action  is  not  deemed  to  have  accrued,  until  the  dis- 
covery, by  the  plaintiff  or  the  person  under  whom  he  claims,  of  the  facts  upon 
which  its  validity  depends. 

7.  An  action  upon  a  judgment  or  decree,  rendered  in  a  court  not  of  record, 
except  where  a  transcript  shall  be  filed,  pursuant  to  Sec.  317  of  this  Act,  and, 
also,  except  a  decree  heretofore  rendered  in  a  surrogate's  court  of  the  State. 
The  cause  of  action,  in  such  a  case,  is  deemed  to  have  accrued  when  final  judg- 
ment was  rendered. 

Sec.  383.  [Amended,  1877,  ch.  416.]  Within  Three  Years.  —  1.  An  action 
against  a  sheriff,  coroner,  constable,  or  other  officer,  for  the  non-payment  of 
money  collected  upon  an  execution. 

2.  An  action  against  a  constable,  upon  any  other  liability  incurred  by  him, 
by  doing  an  act  in  his  official  capacity,  or  by  the  omission  of  an  official  duty; 
except  an  escape. 

3.  An  action  upon  a  statute,  for  a  penalty  or  forfeiture,  where  the  action  is 
given  to  the  person  aggrieved,  or  to  that  person  and  the  people  of  the  State; 
except  where  the  statute  imposing  it  prescribes  a  different  limitation. 

4.  An  action  against  an  executor,  administrator,  or  receiver,  or  against  the 
trustee  of  an  insolvent  debtor,  appointed,  as  prescribed  by  law,  in  a  special  pro- 
ceeding instituted  in  a  court  or  before  a  judge,  brought  to  recover  a  chattel,  or 
damages  for  taking,  detaining,  or  injuring  personal  property  by  the  defendant, 
or  the  person  whom  he  represents. 

5.  An  action  to  recovei  damages  for  a  personal  injury,  resulting  from 
negligence. 

Sec.  384.  Within  Two  Years. —  1.  An  action  to  recover  damages  for  libel, 
slander,  assault,  battery,  or  false  imprisonment. 


NEW    YORK.  757 

2.  An  action  upon  a  statute,  for  a  forfeiture  or  penalty  to  the  people  of  the 
State. 

Sec.  385.  Within  One  Year.  —  1.  An  action  against  a  sheriff  or  coroner,  upon 
a  liability  incurred  by  him,  by  doing  an  act  in  his  official  capacity,  or  by  the 
omission  of  an  official  duty;  except  the  non-payment  of  money  collected  upon 
an  execution. 

2.  An  action  against  any  other  officer,  for  the  escape  of  a  prisoner,  arrested 
or  imprisoned  by  virtue  of  a  civil  mandate. 

Sec.  386.  When  Cause  of  Action  accrues  on  a  Current  Account.  —  In  an 
action  brought  to  recover  a  balance  due  upon  a  mutual,  open,  and  current 
account,  where  there  have  been  reciprocal  demands  between  the  parties,  the 
cause  of  aclion  is  deemed  to  have  accrued  from  the  time  of  the  last  item  proved 
in  the  account  on  either  side. 

Sec.  387.  Action  for  Penalty,  &c,  by  any  Person  who  will  sue.  —  An  action 
upon  a  statute  for  a  penalty  or  forfeiture,  given  wholly  or  partly  to  any  person 
who  will  prosecute  for  the  same,  must  be  commenced  within  one  year  after  the 
commission  of  the  offense;  and  if  the  action  is  not  commenced  within  the  year 
by  a  private  person,  it  may  be  commenced  within  two  years  thereafter,  in 
behalf  of  the  people  of  the  State,  by  the  attorney-general,  or  the  district  attorney 
of  the  county  where  the  offense  was  committed. 

Sec.  3SS.  Actions  not  provided  for.  —  An  action,  the  limitation  of  which  is 
not  specially  prescribed  in  this  or  the  last  title,  must  be  commenced  within  ten- 
years  after  the  cause  of  action  accrues. 

Sec.  389.  Actions  by  the  People  subject  to  the  same  Limitations.  —  The  lim- 
itations prescribed  in  this  title  apply  alike  to  actions  brought  in  the  name  of  the 
people  of  the  State,  or  for  their  benefit,  and  to  actions  by  private  persons. 

Sec.  3go  Action  against  a  Non-resident,  upon  a  Demand  barred  by  the  Law 
of  his  Residence.  — ■  Where  a  cause  of  action,  which  does  not  involve  the  title  to 
or  possession  of  real  property  within  this  State,  accrues  against  a  person,  who 
is  not  then  a  resident  of  the  State,  an  action  cannot  be  brought  thereon  in  a 
court  of  the  State,  against  him  or  his  personal  representative,  after  the  expira- 
tion of  the  time  limited,  by  the  laws  of  his  residence,  for  bringing  a  like  action, 
except  by  a  resident  of  the  State,  and  in  one  of  the  following  cases-  — 

1.  Where  the  cause  of  action  originally  accrued  in  favor  of  a  resident  of  the 
State. 

2.  Where,  before  the  expiration  of  the  time  so  limited,  the  person  in  whose 
favor  it  originally  accrued,  was  or  became  a  resident  of  the  State;  or  the  cause 
of  action  was  assigned  to,  and  thereafter  continuously  owned  by,  a  resident  of 
the  State. 

Sec.  391.  [Amended,  1877,  ch.  416  ]  When  Person  liable,  &c,  dies  without 
the  State.  —  (fa  person,  against  whom  a  cause  of  action  exists,  dies  without 
the  State,  the  time  which  elapses  between  his  death  and  the  expiration  of 
eighteen  months  after  the  issuing,  within  the  State,  of  letters  testamentary  or 
letters  of  administration,  is  not  a  part  of  the  time  limited  for  the  commence- 
ment of  an  action  thersfor,  against  his  executor  or  administrator. 

Sec.  392.  [Amended.   1877,    ch.  416.]      Cause  of  Action  accruing  between 
the  Death  of  a  Testator  or  Intestate,  and  the  Grant  of  Letters.  —  For  the  pur- 
pose of  computing  the  time  within  which  an  action  must  be  commenced  in  a 
court  of  the  State,  by  an  executor  or  administrator,  to  recover  personal  prop 
erty,  taken  after  the  death  of  a  testator  or  intestate,  and  before  the  issuing  of 


758  STATUTES   OF   LIMITATION. 

letters  testamentary  or  letters  of  administration;  or  to  recover  damages  for 
taking  detaining,  or  injuring  personal  property  within  the  same  period;  the 
letters  are  deemed  to  have  been  issued  within  six  years  after  the  death  of  the 
testator  or  intestate.  But  where  an  action  is  barred  by  this  section,  any  of 
the  next  of  kin,  legatees,  or  creditors,  who,  at  the  time  of  the  transaction  upon 
which  it  might  have  been  founded,  was  within  the  age  of  twenty-one  years,  or 
insane,  or  imprisoned  on  a  criminal  charge,  may,  within  five  years  after  the 
cessation  of  such  a  disability,  maintain  an  action  to  recover  damages  by  reason 
thereof;  in  which  he  may  recover  such  sum,  or  the  value  of  such  property,  as 
he  would  have  received  upon  the  final  distribution  of  the  estate,  if  an  aclion 
had  been  seasonably  commenced  by   the  executor  or  administrator. 

Sec.  393.  No  Limitation  of  Action  on  Bank-notes,  &c.  —  This  chapter  does 
not  affect  an  action  to  enforce  the  payment  of  a  bill,  note,  or  other  evidence  of 
debt,  issued  by  a  moneyed  corporation,  or  issued  or  put  in  circulation  as  money. 

Sec.  394.  [Amended,  1877,  ch.  416.]  Action  against  Directors,  &c,  of  Banks. 
—  This  chapter  does  not  affect  an  action  against  a  director  or  stockholder  of  a 
moneyed  corporation  or  banking  association,  to  recover  a  penalty  or  forfeiture 
imposed,  or  to  enforce  a  liability  created  by  law;  but  such  an  action  must  be 
brought  within  three  years  after  the  cause  of  action  has  accrued. 

Sec.  395.  Acknowledgment  or  New  Promise  must  be  in  Writing.  —  An 
acknowledgment  or  promise  contained  in  a  writing,  signed  by  the  party  to  be 
charged  thereby,  is  the  only  competent  evidence  of  a  new  or  continuing  con- 
tract, whereby  to  take  a  case  out  of  the  operation  of  this  title.  But  this  section 
does  not  alter  the  effect  of  a  payment  of  principal  or  interest. 

Sec.  397.  Defence  or  Counterclaim.  —  A  cause  of  action,  upon  which  an 
action  cannot  be  maintained,  as  prescribed  in  this  title,  cannot  be  effectually 
interposed  as  a  defense  or  counterclaim. 

Title  III.  —  General  Provisions. 

Sec.  398.  [Amended,  1877.]  When  Action  deemed  to  be  commenced.  —  An 
action  is  commenced  against  a  defendant,  within  the  meaning  of  any  provision 
of  this  act,  which  limits  the  time  for  commencing  an  action,  when  the  summons 
is  served  on  him;  or  on  a  co-defendant  who  is  a  joint  contractor,  or  otherwise 
united  in  interest  with  him. 

Sec.  399.  Attempt  to  commence  Action  in  a  Court  of  Record. 

Sec.  400.  Attempt  to  commence  Action  in  a  Court  not  of  Record. 

Sec.  401.  [Amended,  1896,  ch.  665.]  Exception,  when  Defendant  is  without 
the  State,  or  concealed  therein.  —  If,  when  the  cause  of  action  accrues  against 
a  person,  he  is  without  the  State,  the  action  may  be  commenced  within  the 
time  limited  therefor,  after  his  return  into  ihe  State.  If,  after  a  cause  of  action 
has  accrued  against  a  person,  he  departs  from  the  State  and  remains  continu- 
ously absent  therefrom  for  the  space  of  one  year  or  more,  or  if,  without  the 
knowledge  of  the  person  entitled  to  maintain  the  action,  he  resides  within  the 
State  under  a  false  name,  the  time  of  his  absence  or  of  such  residence  within 
the  State  under  such  false  name  is  not  part  of  the  time  limited  for  the  com- 
mencement of  the  aclion.  But  this  section  does  not  apply  while  a  designation 
made  as  prescribed  in  §  430,  or  in  subdivision  second  of  ^  432  of  this  act  remains 
in  force. 

Sec.  402.  Exception,  when  a  Person  entitled,  &c  ,  dies  before  Limitation 
expires.  —  If  a  person,  entitled  to  maintain  an  action,  dies  before  the  expiration 


NEW   YORK.  7$9 

«of  the  time  limited  for  the  commencement  thereof,  and  the  cause  of  action  sur- 
vives, an  action  may  be  commenced  by  his  representative,  after  the  expiration 
of  that  time,  and  within  one  year  after  his  death. 

Sec.  403.  [See  Amendment,  1896,  ch.  897.]  Exception,  when  a  Person 
liable,  &c,  dies  within  the  State.  —  The  term  of  eighteen  months  after  the  death, 
within  this  State,  of  a  person  against  whom  a  cause  of  action  exists,  or  of  a  per- 
son who  shall  have  died  within  sixty  days  after  an  attempt  shall  have  been 
made  to  commence  an  action  against  him  pursuant  to  the  provision  of  section 
three  hundred  and  ninety-nine  jf  this  act,  is  not  a  part  of  the  time  limited  for 
the  commencement  of  an  action  against  his  executor  or  administrator.  If  letters 
testamentary  or  letters  of  administration  upon  his  estate  are  not  issued,  within 
the  Stale,  at  least  six  months  before  the  expiration  of  the  time  to  bring  the 
action,  as  extended  by  the  foregoing  provision  of  this  section,  the  term  of  one 
year  after  such  letters  are  issued  is  not  a  part  of  the  time  limited  for  the  com- 
mencement of  such  an  action. 

Sec.  404..  In  Suits  by  Aliens,  Time  of  Disability  in  Case  of  War  to  be 
deducted. 

Sec.  406.  Stay  by  Injunction,  &c,  to  be  deducted.  —  Where  the  commence- 
ment of  an  action  has  been  stayed  by  injunction,  or  other  order  of  a  court  or 
judge,  or  by  statutory  prohibition,  the  time  of  the  continuance  of  the  stay  is 
not  a  part  of  the  time  limited  for  the  commencement  of  the  action. 

Sec.  410.  Provision  when  the  Action  cannot  be  maintained  without  a 
Demand.  —  Where  a  right  exists,  but  a  demand  is  necessary  to  entitle  a  person 
to  maintain  an  action,  the  time,  wilhin  which  the  action  must  be  commenced, 
must  be  computed  from  the  time  when  the  right  to  make  the  demand  is  com- 
plete; except  in  one  of  the  following  cases:  — 

1.  Where  ihe  riijht  grows  out  of  the  receipt  or  detention  of  money  or  property, 
by  an  agent,  trustee,  attorney,  or  other  person  acting  in  a  fiduciary  capacity, 
the  time  must  be  computed  from  the  time  when  the  person,  having  the  right  to 
make  the  demand  has  actual  knowledge  of  the  facts,  upon  which  that  right 
depends. 

2.  Where  there  was  a  deposit  of  money,  not  to  be  repaid  at  a  fixed  time,  but 
only  upon  a  special  demand,  or  a  delivery  of  personal  property,  not  to  be 
returned,  specifically  or  in  kind,  at  a  fixed  time  or  upon  a  fixed  contingency, 
the  time  must  be  computed  from  the  demand. 

Sec.  411.  Provision  in  Case  of  Submission  to  Arbitration. 

Sec.  412.  Provision  when  Action  is  discontinued,  etc.,  after  Answer. 

Sec.  413.  How  Objection  taken,  under  this  Chapter.  —  The  objection,  that 
the  action  was  not  commenced  within  the  time  limited,  can  be  taken  only  by 
answer.  The  corresponding  objection  to  a  defense  or  counterclaim  can  be 
taken  only  by  reply,  except  where  a  reply  is  not  required,  in  order  to  enable 
the  plaintiff  to  raise  an  issue  of  fact   upon  an  allegation  contained  in  the  answer. 

Sec.  414.  Cases  to  which  this  Chapter  applies.  —  The  provisions  of  this 
chapter  apply,  and  constitute  ihe  only  rules  of  limitation  applicable,  to  a  civil 
action  or  special  proceeding,  except  in  one  of  the  following  cases:  — 

1.  A  case  where  a  different  limitation  is  specially  prescribed  by  law,  or  a 
-shorter  limitation  is  prescribed  by  the  written  contract  of  the  parties. 

2.  A  cause  of  action  or  a  defense  which  accrued  before  the  first  day  of  July, 
184S.  The  statutes  then  in  force  govern  with  respect  to  such  a  cause  of  action 
or  defense. 


760  STATUTES   OF   LIMITATION. 

3.  A  case,  not  included  in  the  last  subdivision,  in  which  a  person  is  entitled, 
when  this  act  takes  effect,  to  commence  an  action,  or  to  institute  a  special  pro- 
ceeding, or  to  take  any  proceeding  therein,  or  to  pursue  a  remedy  upon  a  judg- 
ment, where  he  commences,  institutes,  or  otherwise  resorts  to  the  same,  before 
the  expiration  of  two  years  after  this  act  takes  effect;  in  either  of  which  cases 
the  provisions  of  law  applicable  thereto,  immediately  before  this  act  takes 
effect,  continue  to  be  so  applicable,  notwithstanding  the  repeal   thereof. 

4.  A  case  where  the  time  to  commence  an  action  has  expired,  when  this  act 
takes  effect. 

The  word  "  action,"  contained  in  this  chapter,  is  to  be  construed,  when  it  is 
necessary  so  to  do,  as  including  a  special  proceeding,  or  any  proceeding  therein, 
or  in  an  action. 

Sec.  415.  Mode  of  computing  Periods  of  Limitation.  —  The  periods  of  limita- 
tion prescribed  by  this  chapter,  except  as  otherwise  specially  prescribed  therein, 
must  be  computed  from  the  time  of  the  accruing  of  the  right  to  relief  by  action, 
special  proceeding,  defense,  or  otherwise,  as  the  case  requires,  to  the  time 
when  the  claim  to  that  relief  is  actually  interposed  by  the  party,  as  a  plaintiff 
or  a  defendant,  in  the  particular  action  or  special  proceeding. 


NORTH  CAROLINA. 

CODE  OF  CIVIL  PROCEDURE.     1883. 

{Clark' s  Edition,    1892.) 

Chap.  10,  Title  3. 

Chap.  I.  —  Actions  in  General.1 

Sec.  138.  Benefit  of  Limitation;  must  be  taken  by  Answer.  —  Civil  actions 
can  only  be  commenced  within  the  periods  prescribed  in  this  title,  after  the 
cause  of  action  shall  have  accrued,  except  where,  in  special  cases,  a  different 
limitation  is  prescribed  by  statute.  But  the  objection  that  the  action  was  not 
commenced  within  the  time  limited,  can  only  be  taken  by  answer. 

Chap.    II.  —  Actions    for    the    Recovery    of    Real    Property,    Time    of 

COMMENCING. 

Sec.  141.  When  Persona  having  Title  must  sue.  —  When  the  person  in  pos- 
session of  any  real  property,  or  those  under  whom  he  claims,  shall  have  been 
possessed  of  the  same,  under  known  and  visible  lines  and  boundaries,  and 
under  colorable  title  for  seven  years,  no  entry  shall  be  made  or  action  sustained 
against  such  possessor  by  any  person  having  any  right  or  title  to  the  same, 
except  during  the  seven  years  next  after  his  right  or  title  shall  have  descended 
or  accrued,  who,  in  default  of  suing  within  the  time  aforesaid,  shall  be  excluded 
from  any  claim  thereafter  to  be  made;  and  such  possession,  so  held,  shall  be  a 
perpetual  bar  against  all  persons,  subject  to  the  qualifications  in  sections  148, 
149,  and  150. 

1  Sections  1  j6  and  137  (as  to  time  from  May  20,  1861,  &c.)  were  repealed  by  Laws  of  1891,  chap. 
113. 


NORTH   CAROLINA.  761 

Sec.  143.  Seisin  within  Twenty  Years  when  necessary.  —  No  action  for  the 
recovery  of  real  property,  or  the  possession  thereof,  shall  be  maintained,  unless 
it  appear  that  the  plaintiff  or  those  under  whom  he  claims,  was  seised  or  pos- 
sessed of  the  premises  in  question  within  twenty  years  before  the  commence- 
ment of  such  action;  subject  to  the  qualifications  in  sections  148,  149,  and  150. 

Sec.  144.  Adverse  Possession,  Twenty  Years. 

Sec.  145.  Action  after  Entry.  —  No  entry  upon  real  estate  shall  be  deemed 
sufficient  or  valid,  as  a  claim,  unless  an  action  be  commenced  thereupon  within 
one  year  after  the  making  of  such  entry,  and  within  the  time  prescribed  in  this 
title. 

Sec.  150.  Railroads,  &c,  not  barred.  —  No  railroad,  plank-road,  turnpike,  or 
canal  company  shall  be  barred  of,  or  presumed  to  have  conveyed,  any  real 
estate,  right  of  way,  easement,  leasehold,  or  other  interest  in  the  soil  which 
may  have  been  condemned,  or  otherwise  obtained  for  its  use,  as  a  right  of  way, 
depot,  station-house,  or  place  of  landing,  by  any  statute  of  limitation  or  by 
occupation  of  the  same  by  any  person  whatever. 

Sec.  150a.  [By  the  Act  of  1891,  chap.  224,  cities  and  towns  are  never  barred 
as  to  their  public  ways,  squares,  etc.] 

Chap.  III.  —  Actions  other  than  for  the  Recovery  of  Real  Property, 
Time  of  commencing. 

Sec.  151.  Periods  of  Limitation  prescribed.  —  The  periods  prescribed  for  the 
commencement  of  actions,  other  than  for  the  recovery  of  real  property,  shall 
be  as  follows:  — 

Sec.  152.  Within  Ten  Years.  —  (1.)  An  action  upon  a  judgment  or  decree  of 
this  State,  or  any  court  of  the  United  States,  or  of  any  State  or  Territory  thereof. 

(2.)  An  action  upon  a  sealed  instrument  against  the  principals  thereto. 

(3.)  An  action  for  the  foreclosure  of  a  mortgage,  or  deed  in  trust  for  creditors 
with  a  power  of  sale,  of  real  property,  where  the  mortgagor  or  grantor  has  been 
in  possession  of  the  property,  within  ten  years  after  the  forfeiture  of  the  mort- 
gage, or  after  the  power  of  sale  became  absolute,  or  within  ten  years  after  the 
last  payment  on  the  same. 

(4.)  An  action  for  the  redemption  of  a  mortgage,  where  the  mortgagor  has 
been  in  possession,  or  for  a  residuary  interest  under  a  deed  in  trust  for  creditors, 
where  the  trustee,  or  those  holding  under  him,  shall  have  been  in  possession, 
within  ten  years  after  the  right  of  action  accrued. 

Sec.  153.  Within  Seven  Years.  —  (1.)  On  a  judgment  rendered  by  a  justice  of 
the  peace. 

(2.)  By  any  creditor  of  a  deceased  person  against  his  personal  or  real  repre- 
sentative, within  seven  years  next  after  the  qualification  of  the  executor  or 
administrator  and  his  making  the  advertisement  required  dv  law,  for  creditors 
of  the  deceased  to  present  their  claims,  where  no  personal  service  of  such  notice 
in  writing  is  made  upon  ihe  creditor;  and  a  creditor  thus  barred  of  a  recovery 
against  the  representative  of  any  principal  debtor  shall  also  be  barred  of  a 
recovery  against  any  surety  to  such  debt. 

Sec.  154.  Within  Six  Years. — (1.)  An  action  upon  the  official  bond  of  any 
public  officer. 

(2.)  An  action  against  any  executor,  administrator,  or  guardian  on  his  official 
bond,  within  six  years  after  the  auditing  of  his  final  accounts  by  the  proper 
officer,  and  the  filing  of  such  audited  account  as  required  by  law. 


762 


STATUTES   OF    LIMITATION. 


(3.)  An  action  for  injury  to  any  incorporeal  hereditament. 

Sec.  155.  Within  Three  Years.  — (1.)  An  action  upon  a  contract,  obligation, 
or  liability,  arising  out  of  a  contract,  express  or  implied,  except  those  mentioned 
in  the  preceding  sections. 

(2.)  An  action  upon  a  liability  created  by  statute,  other  than  a  penalty  or 
forfeiture,  unless  some  other  time  be  mentioned  in  the  statute  creating  it. 

(3.)  An  action  for  trespass  upon  real  property. 

(4.)  An  action  for  taking,  detaining,  converting,  or  injuring  any  goods  or 
chattels,  including  actions  for  their  specific  recovery. 

(5.)  An  action  for  criminal  conversation,  or  for  any  other  injury  to  the  person 
or  rights  of  another,  not  arising  on  contract  and  not  hereinafter  enunciated. 

(6.)  An  action  against  the  sureties  of  any  executor,  administrator,  collector, 
or  guardian,  on  the  official  bond  of  their  principal,  within  three  years  after  the 
breach  thereof  complained  of. 

(7.)  An  action  against  bail,  within  three  years  after  judgment  against  their 
principal,  but  bail  may  discharge  themselves  by  a  surrender  of  their  principal, 
at  any  time  before  final  judgment  against  them. 

(8.)  Fees  due  to  any  clerk,  sheriff,  or  other  officer,  by  the  judgment  of  a  court, 
within  three  years  from  the  time  of  the  judgment  rendered,  or  of  the  issuing  of 
the  last  execution  therefor. 

(9.)  An  action  for  relief  on  the  ground  of  fraud  or  mistake,  the  cause  of 
action  in  such  cases  not  to  be  deemed  to  have  accrued  until  the  discovery  by 
the  aggrieved  party  of  the  facts  constituting  such  fraud  or  mistake.  (As 
amended  by  Chap.  269  of  the  Acts  of  1889.) 

(10.)  An  action  for  the  recovery  of  land  sold  for  taxes,  provided,  etc. 

Sec.  156.  Within  One  Year.  — (1.)  An  action  against  a  sheriff,  coroner,  or  con- 
stable,  or  other  public  officer,  for  a  trespass  under  color  of  his  omce. 

(2.)  An  action  upon  a  statute  for  a  penalty  or  forfeiture,  where  the  action  is 
given  to  the  State  alone,  or  in  whole  or  in  part  to  the  party  aggrieved,  or  to  a 
common  informer,  except  where  the  statute  imposing  it  prescribes  a  different 
limitation. 

(3.)  An  action  for  libel,  assault,  battery  or  false  imprisonment. 

(4.)  An  action  against  a  sheriff,  or  other  officer,  for  the  escape  of  a  prisoner 
arrested  or  imprisoned  on  civil  process. 

(5.)  Damages  sustained  by  the  wrongful  death  of  any  person  (Code,  sec.  1498). 

[Subsection  (5)  was  repealed  by  chap.  96  of  the  Acts  of  1885.] 

Sec.  157.  Within  Six  Months.  —  An  action  for  slander. 

Sec.  158.  Action  for  other  Relief.  —  An  action  for  relief  not  herein  provided 
for,  within  ten  years. 

Sec.  160.  Action  upon  an  Account  Current.  —  In  an  action  brought  to  recover 
a  balance  due  upon  a  mutual,  open,  and  current  account,  where  there  have 
been  reciprocal  demands  between  the  parties,  the  cause  of  action  shall  be 
deemed  to  have  accrued  from  the  time  of  the  latest  item  proved  in  the  account, 
on  either  side. 

Chap.  IV.  —  General  Provisions  as  to  the  Time  of   commencing  Actions. 

Sec.  [6l.  When  Action  deemed  commenced.  —  An  action  is  commenced  as  to 
each  defendant  when  the  summons  is  issued  against  him. 

Sec.  162.  Action  on  Judgment  when  Defendant  is  out  of  State.  —  If,  when 


NORTH   DAKOTA.  763 

the  cause  of  action  accrue  or  judgment  be  rendered  or  docketed  as  now  pro- 
vided by  law,  against  any  person,  he  shall  be  out  of  the  State,  such  action  may 
be  commenced  or  judgment  enforced  within  the  terms  herein  respectively 
limited  after  the  return  of  such  person  into  this  State;  and  if,  after  such  cause 
of  action  shall  have  accrued  01  judgment  rendered  or  docketed,  such  person 
shall  depart  from  and  reside  out  of  ihis  State,  or  remain  continuously  absent 
therefrom  for  the  space  of  one  year  or  more,  the  time  of  his  absence  shall  not 
be  deemed  or  taken  as  any  part  of  the  time  limited  for  the  commencement  of 
such  action  or  the  enforcement  of  such  judgment. 

This  act  shall  apply  to  all  actions  that  have  accrued  and  judgments  rendered 
or  transferred  or  docketed  since  August  24,  1868. 

The  Acts  of  1891,  Chaps.  92  and  356,  making  it  the  duly  of  Personal  Repre- 
sentatives to  plead  the  bar  of  the  statute  of  limitations  as  a  defense  to  all  actions 
against  them  in  their  representative  capacity,  were  repealed  by  the  Act  of  1893, 
Chap.  7. 


NORTH   DAKOTA. 

Code  of  Civil  Procedure  (1895.)     Part  2.  —  Civil  Actions. 

Chap.  IV.  —  Time  of  Commencing  Actions.     Art.   t.     In  General. 

Sec  5184.  Limitations.  —  Civil  actions  can  only  be  commenced  within  the 
periods  prescribed  in  this  code,  after  the  cause  of  action  shall  have  accrued, 
except  where,  in  special  cases,  a  different  limitation  is  prescribed  by  statute. 
But  the  objection  that  the  action  was  not  commenced  within  the  time  limited 
can  only  be  taken  by  answer. 

Art.  2.    Time  of  commencing  Actions  for  the  Recovery  of  Real  Property. 

Sec.  5185.  By  the  State.  —  The  State  of  North  Dakota  will  not  sue  any  person 
for  or  in  respect  to  any  real  property,  or  the  issues  or  profits  '.hereof,  by  reason 
of  the  right  or  title  of  the  State  to  the  same,  unless:  — 

1.  Such  right  or  title  shall  have  accrued  within  forty  years  before  any  action 
or  other  proceeding  for  the  same  shall  be  commenced;  or  unless, 

2.  The  State,  or  those  from  whom  it  claims  shall  have  received  the  rents  and 
profits  of  such  real  property  or  of  some  part  thereof  within  the  space  of  forty 
years. 

Sec.  5186.  Persons  claiming  under.  —  No  action  shall  be  brought  for.  or  in 
respect  to,  real  property,  by  any  person  claiming  by  virtue  of  grants  from  the 
State,  unless  the  same  might  have  been  commenced,  as  herein  specified,  in  case 
such  grant  has  not  been  issued  or  made. 

Sec.  4836.  Extension  of  same.  —  When  grants  of  real  property  shall  have 
been  issued  or  made  by  the  Territory,  and  the  same  shall  be  declared  void  by 
the  determination  of  a  competent  court,  rendered  upon  the  allegation  of  a 
fraudulent  suggestion,  or  concealment,  or  forfeiture,  or  mistake,  or  ignorance 
of  a  materia)  fact,  or  wrongful  detaining,  or  defective  title,  in  such  case  an 
action  for  the  recovery  of  the  premises  so  conveyed  may  be  brought  either  by 
the  State,  or  by  any  subsequent  grantee  of  the  same  premises,  his  heirs  or 
assigns,  within  twenty  years  after  such  determination  was  made,  but  not  after 
•that  period. 


764  STATUTES   OF   LIMITATION. 

Sec.  5188.  Seisin  within  Twenty  Years.  —  No  action  for  the  recovery  of  real 
property,  or  for  the  recovety  of  ihe  possession  thereof,  shall  be  maintained, 
unless  it  appear  that  the  plaintiff,  his  ancestor,  predecessor,  or  grantor,  was 
seised  or  possessed  of  the  premises  in  question  within  twenty  years  before  the 
commencement  of  such  action. 

Sec.  5189.  Same.  —  No  cause  of  action,  or  defense  to  an  action,  founded  upon 
the  title  to  real  properly,  or  to  rents  or  services  out  of  the  same,  shall  be 
effectual,  unless  it  appear  that  the  person  prosecuting  the  action  or  making  the 
defense,  or  under  whose  title  the  action  is  prosecuted  or  the  defense  is  made, 
or  the  ancestor,  predecessor,  or  grantor  of  such  person,  was  seized  or  possessed 
of  the  premises  in  question  within  twenty  years  before  the  committing  of  the  act 
in  respect  to  which  such  action  is  prosecuted  or  defense  made. 

Sec.  5190.  One  Year  after  Entry.  —  No  entry  upon  real  estate  shall  be  deemed 
sufficient  or  valid  as  a  claim,  unless  an  action  be  commenced  thereupon  within 
one  year  after  the  making  of  such  entry,  and  within  twenty  years  from  the  time 
when  the  right  to  make  such  entry  descended  or  accrued. 

Sec.  5191.  Possession  presumed.  —  In  every  action  for  the  recovery  of  real 
property,  or  the  possession  thereof,  the  person  establishing  a  legal  title  to  the 
premises  shall  be  presumed  to  have  been  possessed  thereof  within  the  time 
required  by  law;  and  the  occupation  of  such  premises  by  any  other  person  shall 
be  deemed  to  have  been  under  and  in  subordination  to  the  legal  title,  unless  it 
appear  that  such  premises  have  been  held  and  possessed  adversely  to  such  legal 
title  for  twenty  years  before  ihe  commencement  of  such  action. 

Sec.  5192.  Occupation  under  Written  Instrument. 

Sees.  5193-5196.  Adverse  Possession. 

Art.   3.    Time  of  commencing  other  Actions. 

Sec.  5199.  Other  Periods. —  The  periods  prescribed  in  section  37  for  the  com- 
mencement of  actions  other  than  for  the  recovery  of  real  property  shall  be  as 
follows:  — 

Sec.  5200.  Ten  Years. —  1.  An  action  upon  a  judgment  or  decree  of  any  court 
of  the  United  States,  or  of  any  State  or  Territory  within  the  United  States. 

2.  An  action  upon  a  contract  contained  in  any  conveyance  or  mortgage  of  or 
instrument  affecting  the  title  to  real  properly,  except  a  covenant,  of"  warranty,  an 
action  upon  which  must  be  commenced  within  ten  years  after  the  final  decision 
against  the  title  of  the  covenantor. 

Sec.  5201.  Six  Years. —  1.  An  action  upon  a  contract,  obligation  or  liability, 
express  or  implied,  excepting  those  mentioned  in  section  4849. 

2.  \n  action  upon  a  liability  created  by  statute,  other  than  a  penalty  or 
forfeiture,  when  not  otherwise  expressly  provided. 

3.  An  action  for  trespass  upon  real  property. 

4.  An  action  for  taking,  detaining,  or  injuring  any  goods  or  chattels,  includ- 
ing actions  for  the  specific  recovery  of  personal  property. 

5.  An  action  for  criminal  conversation,  or  for  any  other  injury  to  the  person 
or  rights  of  another,  not  arising  on  contract,  and  not  hereinafter  enumerated. 

6.  An  action  for  relief  on  the  ground  of  fraud,  in  cases  where  heretofore  were 
solely  cognizable  by  the  Court  of  Chancery,  the  cause  of  action  in  such  case 
not  to  be  deemed  to  have  accrued  until  the  discovery  by  the  aggrieved  party  of 
the  facts  constituting  thr:  fraud. 

Sec.  5202.  Three  Years. —  1.  An  action  against  a  sheriff,  coroner  or  constable, 


NORTH    DAKOTA.  765 

upjn  a  liability  incurred  by  the  doing  of  an  act  in  his  official  capacity  and  by 
virtue  of  his  office,  or  by  the  omission  of  an  official  duty,  including  the  nonpay- 
ment of  money  collected  upon  an  execution.  But  this  section  shall  not  apply 
<o  an  action  for  an  escape. 

2.  An  action  upon  a  statute  for  a  penalty  or  foifeiture,  where  the  action  is 
given  to  the  parly  aggrieved,  or  to  such  party  and  the  Stale,  except  where  the 
statute  imposing  it  prescribes  a  different  limitation. 

Sec.  5203.  Two  Years.  —  1.  An  action  for  libel,  slander,  assault,  battery,  or 
false  imprisonment. 

2.  An  action  upon  a  statute  for  a  forfeiture  or  penalty,  to  the  people  of  the  State. 

3.  An  action  for  the  recovery  of  damages  resulting  from  malpractice. 

4.  An  action  for  injuries  done  to  the  person  of  another,  when  death  ensues 
from  such  injuries;  and  the  cause  of  action  shall  be  deemed  to  have  accrued  at 
the  time  of  the  death  of  the  party  injured. 

Sec.  5204.  One  Year.  —  An  action  against  a  sheriff  or  other  officer  for  the 
escape  of  a  prisoner  arrested  or  imprisoned  on  civil  process. 

Sec.  5205.  Open  Account.  —  In  an  action  brought  to  recover  a  balance  due 
upon  a  mutual,  open,  and  current  account,  where  there  have  been  reciprocal 
demands  between  the  parties,  the  cause  of  action  shall  be  deemed  to  have 
accrued  from  the  time  of  the  last  item  proved  in  the  account  on  either  side. 

Sjc.  5206.  Forfeiture  by  Person.  State.  —  An  action  upon  a  statute  for  a 
penalty  or  forfeiture  given  in  whole  or  in  part  to  any  person  who  will  prosecute 
for  the  same  must  be  commenced  within  one  year  after  the  commission  of  the 
offense;  and  if  the  action  be  not  commenced  within  the  year  by  a  private  party, 
it  may  be  commenced  within  two  years  thereafter  in  behalf  of  the  State  by  the 
attorney-general,  or  by  the  State's  attorney  of  the  county  where  the  offense  was 
committed. 

Sec.  5207.  Other  Relief.  Ten  Years.  —  An  action  for  relief  not  hereinbefore 
provided  for  must  be  commenced  within  ten  years  after  the  cause  of  action  shall 
have  accrued. 

Sec.  5208.  Same  to  Public  and  Persons.  —  The  limitations  prescribed  in  this 
chapter  shall  apply  to  actions  brought  in  the  name  of  the  State,  or  for  its  benefit, 
in  the  same  manner  as  to  actions  by  private  parties. 

General  Provisions  as  to  the    Time  of  commencing'  Actions. 

Sec.  5210.  Exception.  Absence.  —  If,  when  ihe  cause  of  action  shall  accrue 
against  any  person,  he  shall  be  out  of  the  State,  such  action  may  be  commenced 
within  the  terms  herein  respectively  limited  after  the  return  of  such  person  into 
this  State,  and  if  after  such  cause  of  action  shall  have  accrued,  such  person 
shall  depart  from  and  reside  out  of  this  State  or  remain  continuously  absent 
therefrom  for  the  space  of  one  year  or  more,  the  time  of  his  absence  shall  not 
be  deemed  or  taken  as  any  part  of  the  time  limited  for  the  commencement  of 
such  action. 

Sec.  5215.  Injunction,  &c.  — When  the  commencement  of  an  action  is  stayed 
by  injunction  or  other  order  of  a  court  or  judge,  or  by  statutory  prohibition,  ihe 
time  of  the  continuance  of  the  stay  is  not  part  of  the  time  limited  for  the  com- 
mencement of  the  action. 

Sec.  5218.  Bank  Notes.  —  This  chapter  does  not  affect  actions  to  enforce  the 
payment  of  bills,  notes  or  other  evidence  of  debt,  issued  by  moneyed  corpora- 
tions, or  issued  or  put  in  circulation  as  money. 


766  STATUTES   OF   LIMITATION. 


OHIO. 

2  REVISED   STATUTES  (1S98  by   Bates).     Part  III.,  Title   I.  Division  2,, 

Chap.  2. 
Subd.  II.  —  Actions  Concerning  Real  Property. 
Sec.  4977.  Limited  to  Twenty-one  Years. 

Sec.  4978.  Saving  to  Persons  under  Disability.  —  If  a  person  entitled  10  bring 
the  action  mentioned  in  section  4977,  is,  at  the  time  the  cause  of  action  accrues, 
within  the  age  of  minority,  of  unsound  mind,  or  imprisoned,  such  person  may, 
after  the  expiration  of  twenty- one  years  from  the  time  the  cause  of  action 
accrues,  bring  such  action  within  ten  years  after  such  disability  is  removed. 

Subd.  III.  —  Other  Actions. 

Sec.  4979.  How  limited.  —  Civil  actions  other  than  for  the  recovery  of  real 
property  can  only  be  brought  within  the  following  periods,  after  the  cause  of 
action  accrues. 

Sec.  4980.  Within  Fifteen  Years.  —  An  action  upon  a  specialty,  or  an  agree- 
ment, contract,  or  promise  in  writing. 

Sec.  4981.  Within  Six  Years.  —  An  action  upon  a  contract  not  in  writing, 
either  express  or  implied. 

An  action  upon  a  liability  created  by  statute,  other  than  a  forfeiture  or 
penalty. 

Sec.  4982.  Within  Four  Years.  — An  action  for  trespass  upon  real  property; 
but  in  an  action  for  trespass  under  ground  or  injury  to  mines,  the  action  shall 
not  be  deemed  to  have  accrued  until  the  wrongdoer  is  discovered.  An  action 
for  the  recovery  of  personal  property,  or  for  taking,  detaining,  01  injuring  the 
same,  but  in  an  action  for  the  wrongful  taking  of  personal  property,  the  cause 
of  action  shall  not  be  deemed  to  have  accrued  until  the  wrongdoer  is  discovered. 
An  action  for  an  injury  to  the  rights  of  the  plaintiff,  not  arising  on  contract, 
and  not  hereinafter  enumerated. 

An  action  for  relief  on  the  ground  of  fraud,  but  the  cause  of  action  in  such 
case  shall  not  be  deemed  to  have  accrued  until  the  discovery  of  the  fraud. 

Sec.  49S3.  Within  One  Year.  —  An  action  for  libel,  slander,  assault,  battery,, 
malicious  prosecution,  or  false  imprisonment. 

An  action  on  a  statute  for  a  penalty  or  forfeiture;  but  where  a  different  lim- 
itation is  prescribed  in  the  statute  by  which  the  remedy  is  given,  the  action  may 
be  brought  within  the  period  so  limited. 

Sec.  4984.  Action  on  Official  and  other  Bonds.  —  An  action  upon  the  official 
bond  or  undertaking  of  an  officer,  assignee,  trustee,  executor,  administrator,  or 
guardian,  or  upon  a  bond  or  undertaking  given  in  pursuance  of  a  statute,  can 
only  be  brought  within  ten  years  after  the  cause  of  action  accrues;  but  this  sec- 
tion shall  be  subject  to  the  qualification  in  sec.  497«- 

Sec.  49S5.  For  other  Relief.  —  An  action  for  relief  not  hereinbefore  provided 
for  can  only  be  brought  within  ten  years  after  the  cause  of  action  accrues. 

Sec.  4986.  Rights  saved.  —  If  a  person  entitled  to  bring  any  action  mentioned 

in  this  subdivision,  except  for  a  penalty  or  forfeiture,  is,  at  the  time  the  cause 

ion  accrues,  within  the  age  of  minority,  of  unsound  mind,  or  imprisoned, 

such  person  may  bring  such  action  within   the  respective  times  limited  by  this. 

subdivision,  after  such  disability  is  removed. 


OKLAHOMA   TERRITORY.  767 

Subd.  IV.  —  General  Provisions. 

Sec.  4988.  When  Attempt  equivalent  to  Commencement.  —  An  attempt  to 
commence  an  action  shall  be  deemed  equivalent  to  the  commencement  thereof, 
within  the  meaning  of  this  chapter,  when  the  party  diligently  endeavors  to 
procure  a  service;  but  such  attempt  must  be  followed  by  service  within  sixty 
days. 

Sec.  4990.  If  barred  at  Place  of  Contract,  barred  here. —  If,  by  the  laws  of 
the  State  or  country  where  the  cause  of  action  arose,  the  action  is  barred,  it  is 
also  barred  in  this  Slate. 

Title  III.,  Chap.  9. 

Sec.  6599.  Forcible  Entry  and  Detainer.  Jurisdiction  of  Justice. —  *  *  * 
Such  action  can  only  be  brought  within  two  years  after  the  cause  thereof  shall 
have  accrued. 


OKLAHOMA  TERRITORY. 

Statutes,  1893.     Chap.  66,  Art.  3. 

,)  §  16.  Actions  for  the  recovery  of  real  property,  or  for  the  determin- 
ation of  any  adverse  right  or  interest  therein,  can  only  be  brought  within  the 
periods  hereinafter  prescribed,  after  the  cause  of  action  shall  have  accrued,  and 
at  no  time  thereafter:  — 

First.  An  action  for  the  recovery  of  real  property  sold  on  execution,  brought 
by  the  execution  debtor,  his  heirs  or  any  person  claiming  under  him,  by  title 
acquired,  after  the  date  of  the  judgment,  within  five  years  after  the  date  of  the 
recording  of  the  deed  made  in  pursuance  of  the  sale. 

Second.  An  action  for  the  recovery  of  real  property  sold  by  executors,  adminis- 
trators or  guardians,  upon  an  order  or  judgment  of  a  court  directing  such  sale, 
brought  by  the  heirs  or  devisees  of  the  deceased  person;  or  the  ward  or  his 
guardian,  or  any  person  claiming  under  any  or  either  of  them,  by  title  acquired 
after  the  date  of  the  judgment  or  order,  within  five  years  after  the  date  of  the 
recording  of  the  deed  made  in  pursuance  of  the  sale. 

Third.  An  action  for  the  recovery  of  real  property  not  hereinbefore  provided 
for,  within  fifteen  year s . 

Fourth.  An  action  for  the  forcible  entry  and  detention,  or  forcible  detention 
only,  of  real  property,  within  two  years. 

(3889.)  §  17.  Any  person  entitled  to  bring  an  action  for  the  recovery  of  real 
property,  who  may  be  under  any  legal  disability  when  the  cause  of  action 
accrues,  may  bring  his  action  within  two  years  after  the  disability  is  removed. 

(3890.)  §  18.  {As  amended  by  the  Act  of  iSqj,,  ch.  jg.)  —  Civil  actions,  other 
than  for  the  recovery  of  real  property,  can  only  be  brought  within  the  following 
periods,  after  the  cause  of  action  shall  have  accrued,  and  not  afterwards:  — 

First.  Within  five  years:  An  action  upon  any  contract,  agreement  or  promise 
in  writing. 

Second.  Within  three  years:  An  action  upon  a  contract  not  in  writing,  express 
or  implied;  an  action  upon  a  liability  created  by  statute  other  than  a  forfeiture 
or  penalty. 

Third.  Within  two  years:  An  action  for  trespass  upon  real  property;  an  action 
for  taking,  detaining  or  injuring  personal  property,  including  actions  for  the 


;<>S  STATUTES   OF    LIMITATION. 

specific  recovery  of  personal  property;  an  action  for  injury  to  the  rights  of 
another,  not  arising  on  contract,  and  not  hereinafter  enumerated;  an  action  for 
relief  on  the  ground  of  fraud  —  the  cause  of  action  in  such  case  shall  not  be 
deemed  u>  have  accrued  until  the  discovery  of  the  fraud. 

/■'smth.  Within  one  year;  An  action  on  a  foreign  judgment;  an  action  for 
libel,  slander,  assault,  battery,  malicious  prosecution,  or  false  imprisonment; 
aw  action  upon  a  statute  for  penalty  or  forfeiture,  except  where  the  statute 
ie.ii  osing  it  prescribes  a  different  limitation. 

Fifth.  An  action  upon  the  official  bond  or  undertaking  of  an  executor, 
administrator,  guardian,  sheriff,  or  any  other  olficer,  or  upon  the  bond  or  under- 
taking given  in  attachment,  injunction,  arrest,  or  in  any  case  whatever  required 
by  the  statute,  can  only  be  brought  within  five  years  after  the  cause  of  action 
shall  have  accrued. 

Su  t ':.  A n  action  for  relief,  not  hereinbefore  provided  for,  can  only  be  brought 
within  five  years  after  the  cause  of  action  shall  have  accrued. 

(3897.)  ^  25.  When  a  right  of  action  is  barred  by  the  provisions  of  any 
statute,  it  shall  be  unavailable  either  as  a  cause  of  action  or  right  of  defense. 


OREGON. 

GENERAL  LAWS,  1S92.    CIVIL  CODE,  Chap.  I.,  Title  ii. 
Of  the  Time  ok  Commencing  ok  Actions. 

Section  3.  Time  of  commencing  Actions. —  Actions  at  law  shall  only  be  com- 
menced within  the  periods  prescribed  in  this  title,  after  the  cause  of  action  shall 
have  accrued;  except  when,  in  special  cases,  a  different  limitation  is  prescribed 
by  statute.  But  the  objection  that  the  action  was  not  commenced  within  the 
time  limited  shall  only  be  taken  by  answer,  except  as  otherwise  provided  in 
Section  67. 

Sec.  4.  Real  Property.  —  The  periods  prescribed  in  section  three  of  this  act 
for  the  commencement  of  actions  shall  be  as  follows:  — 

Within  ten  years,  actions  for  the  recovery  of  real  property,  or  for  the  recovery 
of  the  possession  thereof;  and  no  action  shall  be  maintained  for  such  recovery, 
unless  it  appear  that  the  plaintiff  his  ancestor,  predecessor,  or  grantor,  was 
seised  or  possessed  of  the  premises  in  question  within  ten  years  before  the  com- 
mencement of  said  action:  Provided,  that  in  all  cases  where  a  cause  of  action 
has  already  accrue.!,  and  the  period  prescribed  in  this  section  within  which  an 
.u  linn  m. iv  be  brought  has  expired,  or  will  expire  within  one  year  from  the 
approval  of  this  act,  an  action  may  be  brought  on  such  cause  of  action  within 
o»r  vear  from  the  d  ite  of  the  approval  of  this  act. 

Sec.  5.  Within  Ten  Years. —  1.   An  action  upon  a  judgment  or  decree  of  any 
of   the    United    Slates,  or   of   any  State   or    Territory    within    the    United 
States, 

\n  .1.  linn  upon  a  sealed  instrument. 

Sec  .  6,  Within  Six  Years.  —  1.  An  action  upon  a  contract  or  liability,  express 
or  Implied,  excepting  those  mentioned  in  section  5. 

2.  An  action  upon  a  liability  created  by  statute,  other  than  a  penalty  or 
forfeiture. 


OREGON-  769 

3.  An  action  for  waste  or  trespass  upon  real  property. 

4.  An  action  for  taking,  detaining,  or  injuring  personal  property,  including 
an  action  for  the  specific  recovery  thereof. 

Sec.  7.  Within  Three  Years. —  ;.  An  action  against  a  sheriff,  coroner,  or 
constable,  upon  a  liability  incurred  by  the  doing  of  an  act  in  his  official  capacity, 
and  in  virtue  of  his  office;  or  by  the  omission  of  an  official  duty;  including  the 
non-payment  of  money  collected  upon  an  execution.  But  this  section  shall  not 
apply  to  an  action  for  an  escape. 

2.  An  action  upon  a  statute  for  penalty  or  forfeiture,  where  the  action  is 
given  to  the  party  aggrieved,  or  to  such  party  and  the  State,  except  when  the 
statute  imposing  it  prescribes  a  different  limitation. 

Sec.  8.  Within  Two  Years.  —  1.  An  action  for  libel,  slander,  assault,  battery, 
or  false  imprisonment,  for  criminal  conversation,  or  for  any  injury  to  the  per- 
son or  rights  of  another,  not  arising  on  contract,  and  not  herein  specially 
enumerated. 

2.   An  action  upon  a  statute  for  a  forfeiture  or  penalty  to  the  Slate. 

Sec.  9.  Within  One  Year.  —  An  action  against  a  sheriff  or  other  officer,  for  the 
escape  of  a  prisoner  arrested  or  imprisoned  on  civil  process. 

Sec.  10.  Actions  for  Penalties.  —  An  action  upon  a  statute  for  a  penalty  given 
in  the  whole  or  in  part  to  the  person  who  will  prosecute  for  the  same,  shall  be 
commenced  within  one  year  after  the  commission  of  the  offense;  and,  if  the 
action  be  not  commenced  within  one  year  by  a  private  party,  it  may  be  com- 
menced within  two  years  thereafter,  in  behalf  of  the  State,  by  the  district  attor- 
ney of  the  county  when  the  offense  was  committed,  or  is  triable. 

Sec.  11.  Other  Actions.  —  An  action  for  any  cause  not  hereinbefore  provided 
for  shall  be  commenced  within  ten  years  after  the  cause  of  action  shall  have 
accrued. 

Sec.  12.  Accounts.  —  In  an  action  brought  to  recover  a  balance  due  upon  a 
mutual,  open,  and  current  account,  where  there  have  been  reciprocal  demands 
oetween  the  parties,  the  cause  of  action  shall  be  deemed  to  have  accrued  from 
the  time  of  the  last  item  proved  in  the  account  on  either  side;  but  whenever  a 
period  of  more  than  one  year  shall  elapse,  between  any  of  a.  series  of  items  or 
demands,  they  are  not  to  be  deemed  such  an  account. 

Sec.  13.  Action  by  the  State.  — The  limitations  prescribed  in  this  title  shall 
apply  to  actions  brought  in  the  name  of  the  State,  or  any  county  or  other  public 
corporation  therein,  or  for  its  benefit  in  the  same  manner  as  to  actions  by 
private  parties. 

Sec.  16.  When  Defendant  is  absent  or  concealed.  —  If,  when  the  cause  of 
action  shall  accrue  against  any  person,  who  shall  be  out  of  the  State  or  con- 
cealed therein,  such  action  may  be  commenced  within  the  terms  herein  respec- 
tively limited,  after  the  return  of  such  person  into  the  State,  or  the  time  of  his 
concealment;  and  if,  after  such  cause  of  action  shall  have  accrued,  such  person 
shall  depart  from  and  reside  out  of  this  State,  or  conceal  himself,  the  time  of 
his  absence  or  concealment  shall  not  be  deemed  or  taken  as  any  part  of  the 
time  limited  for  the  commencement  of  such  action. 

Sec.  26.  Cause  of  Action  barred.  —  When  the  cause  of  action  has  arisen  in 
another  State,  Territory,  or  country,  between  non-residents  of  this  State,  and 
by  the  laws  of  the  State,  Territory,  or  country  where  the  cause  of  action  arose, 
an  action  cannot  be  maintained  thereon  by  reason  of  lapse  of  time,  no  action 
shall  be  maintained  thereon  in  this  State. 
[stats,  of  itm.  — 49.] 


77°  STATUTES    OF    LIMITATION. 

Chaf.   V. 

Suits  in  Equity. 
Sec.  382.  Real  Actions,  ten  years. 

Title  II.,  Chap.  XIII. 

Sec.  2178.  Mining  Claims.  —  One  year's  adverse  possession  of  a  mining  claim* 
immediately  preceding  the  commencement  of  an  action  therefor,  by  the  defend- 
ant or  those  under  whom  he  holds,  if  pleaded,  is  a  bar  to  the  action  for  the  pos- 
session thereof. 

SUPPLEMENTAL  ACTS. 

By  the  Act  of  Feb.  20.  1893.  a  person  entitled  to  contest  a  will,  if  under  legal 
disability,  has  one  year  after  its  removal  lo  institute  such  contest. 

By  the  Act  of  Feb.  23,  1895,  the  statute  of  limitations  does  not  apply  so  as  to 
cause  the  loss  of  title  to  public  streets,  country  roads,  or  other  public  property* 
to  cities  and  tcwns. 


PENNSYLVANIA. 

BRIGHTLY'S  PURDON'S  DIGEST  1894.    Vol.  I.  Page  1208. 

Limitation  of  Actions. 

[Note.  As  these  statutes  are  lengthy  and  ancient,  only  their  purport  is  here 
indicated.] 

I.  —  Actions  for  the  Recovery  of  Real  Estate. 

Sees.  1,  2.  Seven  Years'  Quiet  Possession.  —  Seven  years'  quiet  possession 
of  lands  within  this  province,  which  were  first  entered  on,  upon  an  equitable 
right,  shall  forever  give  an  unquestionable  title  to  the  same  against  all,  during 
the  estate  whereof  they  are  or  shall  be  possessed,  except  in  cases  of  infants, 
married  women,  lunatics,  and  persons  not  residing  within  this  province  of  terri- 
tories, etc.1 

Sees.  3,  4.  Entry  barred  in  Twenty-one  Years. 

Sec.  7.  Six  Years'  Possession  to  Validate  Prior  Sheriff's  Deeds.  (As  amended 
by  the  Acts  of  1885,  No.  196.) 

Sec.  8.  All  Persons  to  be  barred  after  Forty  Years. 

Sec.  10.  Thirty  Years'  Possession  to  be  Evidence  of  Title  out  of  Common- 
wealth.    Twenty-one  Years,  when. 

Sec.  11.  Limitation  of  Claim  for  Ground-rent. 

Sec.  12.  Limitation  of  Claim  for  Apportionment  of  Ground-rent. 

Sec.  13.   Persons  under  Disabilities  tc  bring  Suits  within  Thirty  Years. 

Sec.  14.  Specific  Performance:  Damages  for  Non-performance.  Equity  of 
Redemption      Implied  or  Resulting  Trust. 

Sec.  15.   Not  to  run  in  Favor  of  an  Attorney  at-law. 

Sec.  16.  Suits  to  be  brought  within  One  Year  after  Entry.  —  No  entry  upon 
lands  shall  arrest  the  running  of  the  statute  of  limitations,  unless  an  action  of 

1  This  ai  i  la  '!•  •  In.  .I  in  9  Wheat.  319,  to  have  been  repealed  by  the  act  of  1785,  sec.  2  of  this  act. 


PENNSYLVANIA.  Jfl 

ejectment  be  commenced  therefor  within  one  year  thereafter;  nor  shall  such 
enlry  and  action,  without  a  recovery  therein,  arrest  the  running  of  said  statute 
in  respect  to  another  ejectment,  unless  it  be  brought  within  a  year  after  the 
first  shall  have  been  nonsuited,  arrested,  or  decided  against  the  plaintiff  therein. 
Sec.  17.   Statute  to  run  against  Remaindermen,  &c,  unless. 

II.  —  Personal  A  ctions. 

Sec.  18.  Personal  Actions.  — All  actions  of  trespass  quare  clausum  fregit,  all 
actions  of  detinue,  trover,  and  replevin  for  taking  away  goods  and  cattle,  all 
actions  upon  account,  and  upon  the  case,  other  than  such  accounts  as  concern 
the  trade  of  merchandise  between  merchant  and  merchant,  their  factors  or  serv- 
ants, all  actions  of  debt,  grounded  upon  any  lending  or  contract,  without 
specialty,  all  actions  of  debt  for  arrearages  of  rent,  except  the  proprietaries' 
quit-rents,  and  all  actions  of  trespass,  of  assault,  menace,  battery,  wounding, 
and  imprisonment,  or  any  of  them,  which  shall  be  sued  or  brought  at  any  time 
after  April  25,  1713,  shall  be  commenced  and  sued  within  the  time  and  limita- 
tion hereafter  expressed,  and  not  after;  that  is  to  say,  the  said  actions  upon  the 
case,  other  than  for  slander,  and  the  said  actions  for  account,  and  the  said 
actions  for  trespass,  debt,  detinue  and  replevin  for  goods  or  cattle,  and  the  said 
actions  of  trespass  qucpre  clausum  f regit,  within  six  years  next  after  the  cause 
of  such  action  or  suit,  and  not  after.  And  the  said  actions  of  trespass,  of 
assault,  menace,  battery,  wounding,  imprisonment,  or  any  of  them,  within  two 
years  next  after  the  cause  of  such  action  or  suit,  and  not  after.  And  the  said 
actions  upon  the  case  for  words,  within  one  year  next  after  the  words  spoken, 
and  not  after. 

Sec.  19.  Libel.  —  Extends  to  all  cases  of  slander  and  libel,  whether  spoken, 
•vritten,  or  printed. 

Sec.  28.  Suits  for  Negligence  against  Passenger  Railway  Companies.  —  No 
suit  against  any  passenger  railway  company  (whose  route  is  wholly  within  the 
counly  of  Philadelphia)  for  damages  for  injuries  or  death,  shall  be  brought, 
unless  the  same  shall  be  within  six  months  from  the  time  the  right  of  action 
shall  accrue. 

Sec.  33.  Bonds  of  Public  Officers.  Seven  Years. —  Persons  entering  into 
bonds  or  recognizances,  as  sureties  for  any  public  officers,  should  be  exonerated 
from  their  responsibility  within  a  reasonable  term  afler  such  officers  respectively 
shall  die,  resign,  or  be  removed  from  office:  Therefore,  it  shall  not  be  lawful  for 
any  person  or  persons  whomsoever  to  commence  and  maintain  any  suit  or  suits 
on  any  bonds  or  recognizances  which  shall  hereafter  be  given  and  entered  into 
by  any  person  or  persons,  as  sureties  for  any  public  officer,  from  and  after  the 
expiration  of  the  term  of  seven  years,  to  be  computed  from  the  time  at  which 
the  cause  of  action  shall  have  accrued;  and  if  any  such  suit  or  suits  shall  be 
commenced  contrary  to  the  intent  and  meaning  of  this  act,  the  defendant  or 
defendants  respectively  shall  and  may  plead  the  general  issue,  and  give  this 
fact  and  the  special  matter  in  evidence;  and  if  the  plaintiff  or  plaintiffs  be  non- 
suited, or  if  a  verdict  or  judgment  pass  against  him  or  them  respectively,  the 
defendant  or  defendants  shall  respectively  recover  double  costs. 

The  Act  of  May  22,  1895,  No.  86,  provided  that,  in  all  civil  suits  and  actions, 
the  cause  of  which  arose  in  Pennsylvania,  the  defendant,  if  he  thereafter 
becomes  a  nonresident,  shall  not  have  the  benefit  of  the  local  statutes  of  limita- 
tions during  such  nonresidence. 


772  STATUTES   OF    LIMITATION. 

RHODE   ISLAND. 
GENERAL  LAWS,   1896,   Chap.  234. 

Section  1.  Actions  of  Slander.  —  Actions  on  the  case  for  words  spoken  shall 
be  commenced  and  sued  within  one  year  next  after  the  words  spoken,  and  not 
after. 

Sec.  2.  Trespass.  —  Actions  of  trespass  shall  be  commenced  and  sued  within 
f out  years  next  after  the  cause  of  action  shall  accrue,  and  not  after. 

Sec.  3  Of  Account,  Case  and  Debt,  except,  &c,  and  of  Detinue  and  Replevin. 
—  All  actions  of  account,  except  on  such  accounts  as  concern  trade  or  merchan- 
dise between  merchant  and  merchant,  their  factors  and  servants,  all  actions  of 
the  case,  except  for  words  spoken,  all  actions  of  debt  founded  upon  any  con- 
tract without  specialty  or  brought  lor  arrearages  of  rents,  and  all  actions  of 
detinue  and  replevin,  shall  be  commenced  and  sued  within  six  years  next  after 
the  cause  of  such  action  shall  accrue,  and  not  after. 

Sec.  4.  Of  Debt  on  Specialty  and  Covenant.  —  All  actions  of  debt  other  than 
those  in  the  preceding  section  specified,  and  all  actions  of  covenant,  shall  be 
commenced  and  sued  within  twenty  years  next  after  the  cause  of  action  shall 
accrue,  and  not  after. 

Sec.  5.  Saving  in  Favor  of  Residents,  against  Absent  Defendants.  —  If  any 
person,  against  whom  there  is  or  shall  be  cause  for  any  action  hereinbefore 
enumerated  in  favor  of  a  resident  therein,  shall,  at  the  time  such  cause  accrue, 
be  without  the  limits  of  the  State,  or  being  within  the  State  at  the  time  such 
cause  accrue,  shall  go  out  of  the  State  before  said  action  shall  be  barred  by  the 
provisions  of  this  chapter,  and  shall  not  have  or  leave  property  or  estate  therein 
that  can,  by  the  common  and  ordinary  process  of  law  be  attached,  then  the 
person  entitled  to  such  action  may  commence  the  same  within  the  time  before 
limited,  after  such  person  shall  return  into  the  State,  in  such  manner  that  an 
action  may,  with  reasonable  diligence,  be  commenced  against  him  by  the  per- 
son entitled  to  the  same. 

Sec.  6.  General  Savings.  —  If  any  person  at  the  time  any  such  action  shall 
accrue  to  him  shall  be  within  the  age  of  twenty-one  years,  or  of  unsound  mind, 
or  imprisoned,  or  beyond  the  limits  of  the  United  States,  such  person  may 
bring  the  same,  within  such  time  as  is  hereinbefore  limited,  after  such  impedi- 
ment is  removed. 

Sec.  7.  If  any  person  liable  to  an  action  by  another,  shall  fraudulently,  by 
actual  misrepresentation,  conceal  from  him  the  existence  of  the  cause  of  such 
action,  said  cause  of  action  shall  be  deemed  to  accrue  against  said  person  so 
liable  therefor,  at  the  time  when  the  person  entitled  to  sue  thereon  shall  first 
discover  its  existence. 

Sec  8.  Time  extended  by  Death  cf  Parties,  when.  —  If  any  person,  for  or 
against  whom  any  of  such  actions  shall  accrue,  shall  die  before  the  time  limited 
for  bringing  the  same,  or  within  sixty  days  after  the  expiration  of  said  time, 
and  the  cause  of  such  action  shall  survive,  such  action  may  be  commenced  by 
■  linst  the  executor  or  administrator  of  the  deceased  person,  as  the  case 
may  be,  at  any  time  within  one  year  after  the  decease  of  the  person  so  dying, 
if  I)  irrcd  by  the  provisions  of  this  chapter. 

Sec  9,  Abatement  of  Action  or  Arrest  of  Judgment. —  If  any  action  duly 
be   abated   or  otherwise   avoided   or  defeated  by  the  death  of  any  party 


SOUTH    CAROLINA.  773 

commenced  within  the  time  limited  and  allowed  therefor  in  and  by  this  chapter, 
thereto,  or  for  any  matler,  or  if,  after  verdict  for  the  plaintiff,  the  judgment, 
shall  be  arrested,  the  plaintiff  may  commence  a  new  action  for  the  same  cause, 
at  any  time  within  one  year  after  the  abatement  or  other  determination  of  the 
original  suit  as  aforesaid;  and  if  ihe  cause  of  action  does  by  law  survive,  his 
executor  or  administrator  may,  in  case  of  his  death,  commence  said  new  action 
within  the  said  one  year. 

Sec.  10.   Special  Limitations  saved.  —  The  provisions  of  this  chapter  shall  not 
apply  to  any  case  in  which  by  special  provision  a  different  time  is  limited. 


SOUTH    CAROLINA. 

REVISED  STATUTES,   1893. 

CODE  OF  CIVIL   PROCEDURE.     Part  II.,  Title  II. 

Chap.  2. — For  the  Recovery  of  Real  Property. 

Sec.  98.  1.  Seisin  within  Twenty  Years,  when  necessary.  —  No  action  for  the 
recovery  of  real  property,  or  for  the  recovery  of  the  possession  thereof,  shall  be 
maintained,  unless  it  appear  that  the  plaintiff,  his  ancestor,  predecessor,  or 
grantor,  was  seised  or  possessed  of  the  premises  in  question  within  ten  years 
before  the  commencement  of  such  action. 

2.  Person  limited  to  Two  Actions  for  Realty.  —  The  plaintiff  in  all  actions 
for  the  recovery  of  realty  is  hereby  limited  to  two  actions  for  the  same,  and  no 
more:  Provided,  that  the  costs  of  the  first  action  be  first  paid,  and  the  second 
action  be  brought  within  two  years  from  the  rendition  of  the  verdict  or  judg- 
ment in  the  first  action,  or  from  the  granting  of  a  new  suit  or  discontinuance 
therein. 

Sec.  99.  Seisin  within  Twenty  Years,  when  necessary.  —  No  cause  of  action, 
or  defense  to  an  action,  founded  upon  the  title  to  real  property,  or  to  rents  or 
services  out  of  the  same,  shall  be  effectual,  unless  it  appear  that  the  person 
prosecuting  the  action  or  making  the  defense,  or  under  whose  title  the  action  is 
prosecuted  or  the  defense  is  made,  or  the  ancestor,  predecessor,  or  grantor  of 
such  person,  was  seised  or  possessed  of  the  premises  in  question  within  ten 
years  before  the  committing  of  the  act  in  respect  to  which  such  action  is  prose- 
cuted or  defense  made. 

Sec.  100.  Action  after  Entry.  —  No  entry  upon  real  estate  shall  be  deemed 
sufficient  or  valid,  as  a  claim,  unless  an  action  be  commenced  thereupon  within 
one  year  after  the  making  of  such  entry,  and  within  ten  years  from  the  time 
when  the  right  to  make  such  entry  descended  or  accrued. 

Sec.  101.  Possession  presumed. 

Sees.  102-106.   Adverse  Possession  defined. 

Sec.  109.  No  action  shall  be  commenced  in  any  case  for  the  recovery  of  real 
property,  or  for  any  interest  therein,  against  a  person  in  possession  under  claim 
of  title  by  virtue  of  a  written  instrument,  unless  the  person  claiming,  his 
ancestor  or  grantor,  was  actually  in  the  possession  of  the  same  or  a  part  thereof 
within  forty  years  from  the  commencement  of  such  action.  And  the  possession 
of  a  defendant,  sole  or  connected,  pursuant  to  the  provisions  of  this  section, 
shall  be  deemed  valid  against  the  world  after  the  lapse  of  said  period. 


774  STATUTES   OF   LIMITATION. 

Chap.  3.  —  Time  of  Commencing  Actions  other  than  for  the   Recovery 

of  Real  Property. 

Sec.  no.  Period  of  Limitation  prescribed.  —  The  periods  prescribed  in  section 
94  for  the  commencement  of  actions  other  than  for  the  recovery  of  real  property 
shall  be  as  follows:  — 

Sec.  in.  Within  Twenty  Years.  —  1.  An  action  upon  a  judgment  or  decree 
of  any  court  of  the  United  States,  or  of  any  Slate  or  Territory  within  the  United 
States. 

2.  An  action  upon  a  bond,  or  other  contract  in  writing,  secured  by  a  mort- 
gage of  real  property;  an  action  upon  a  sealed  instrument  other  than  a  sealed 
note  and  personal  bond  for  the  payment  of  money  only,  whereof  the  period  of 
limitation  shall  be  the  same  as  prescribed  in  the  following  section. 

Sec.  112.  Within  Six  Years.  —  1.  An  action  upon  a  contract,  obligation,  or 
liability,  express  or  implied,  excepting  those  mentioned  in  section  in. 

2.  An  action  upon  a  liability  created  by  statute,  other  than  a  penaltv  or 
forfeiture. 

3.  An  action  for  trespass  upon  or  damage  to  real  property. 

4.  An  action  for  taking,  detaining,  or  injuring  any  goods  or  chattels,  includ- 
ing actions  for  the  specific  recovery  of  personal  property. 

5.  An  action  for  criminal  conversation,  or  for  any  other  injury  to  the  person 
or  rights  of  another,  not  arising  on  contract,  and  not  hereinafter  enumerated. 

6.  An  action  for  relief  on  the  ground  of  fraud,  in  cases  which,  heretofore, 
were  solely  cognizable  by  the  Court  of  Chancery,  ihe  cause  of  action  in  such 
case  not  to  be  deemed  to  have  accrued  until  the  discovery  by  the  aggrieved 
party  of  the  facts  constituting  the  fraud. 

Sec.  113.  Within  Three  Years.  —  1.  An  action  against  a  sheriff,  coroner  or 
constable,  upon  a  liability  incurred  by  the  doing  of  an  act  in  his  official  capacity, 
and  in  virtue  of  his  office,  or  by  the  omission  of  an  official  duty,  including  the 
nonpayment  of  money  collected  upon  an  execution.  But  this  section  shall  not 
apply  to  an  action  for  an  escape. 

2.  An  action  upon  a  statute,  for  a  penalty  or  forfeiture,  where  the  action  is 
given  to  the  party  aggrieved,  or  to  such  party  and  the  State,  except  where  the 
statute  imposing  it  prescribes  a  different  limitation. 

Sec.  114.  Within  Two  Years.  —  1.  An  action  for  libel,  slander,  assault, 
battery,  or  false  imprisonment. 

2.   An  action  upon  a  statute  for  a  forfeiture  or  penalty  to  the  State. 

Sec.  115.  Within  One  Year. —  1.  An  action  against  a  sheriff  or  other  officer 
for  the  escape  of  a  prisoner  arrested  or  imprisoned  on  civil  process. 

Sec.  116.  Action  upon  an  Account  Current.  —  In  an  action  brought  to  recover 
a  balance  due  upon  a  mutual,  open,  and  current  account,  where  there  have 
been  reciprocal  demands  between  the  parties,  the  cause  of  action  shall  be 
deemed  to  have  accrued  from  the  time  of  the  last  item  proved  in  the  account 
on  either  side. 

Sec.  117.  Action  for  Penalties,  Ac.  —  An  action  upon  a  statute  for  a  penalty 
01  forfeiture  given,  in  whole  or  in  part,  to  any  person  who  will  prosecute  for 
hi-  must  be  commenced  within  one  year  after  the  commission  of  the 
offense;  and  if  the  action  be  not  commenced  within  the  year  by  a  private  party, 
it  may  be  commenced  w.thin  two  years  thereafter,  in  behalf  of  the  State,  by 
the  attorney-general  or  the  soliciton  of  the  circuit  where  the  offense  was  com- 


SOUTH   DAKOTA.  775 

mitted,  unless  a  different  limitation  be  prescribed  in  the  statute  under  which 
the  action  is  brought. 

Sec.  118.  Actions  for  other  Relief. —  An  action  for  relief  not  hereinbefore  pro- 
vided for  must  be  commenced  within  ten  years  after  cause  of  action  shall  have 
accrued. 

Sec.  119.  Actions  by  the  State.  —  The  limitations  prescribed  in  this  chapter 
shall  apply  to  actions  brought  in  the  name  of  the  State,  or  for  its  benefit,  in  the 
same  manner  as  to  actions  by  private  parties. 


Chap.  4. — General  Provisions  as  to  the  Time  of  Commencing  Actions. 

Sec.  129.  Bills,  Notes,  &c.  — This  title  shall  not  affect  actions  to  enforce  the 
payment  of  bills,  notes,  or  other  evidences  of  debt,  issued  by  moneyed  corpora- 
tions, or  issued  or  put  in  circulation  as  money. 


Chap.  90. 

Sec.  2298.  Forcible  Entry  and  Detainer.  —  They  which  keep  their  possessions 
with  force  in  any  lands  and  tenements  whereof  they  or  their  ancestors,  or  they 
whose  estate  they  have  in  such  lands  and  tenements,  have  continued  their  pos- 
sessions in  the  same  by  three  years  or  more,  shall  not  be  endangered  by  force  of 
this  chapter. 


SOUTH  DAKOTA. 

{Code  of  Civil  Procedure,  1899,  by  Grantham.) 

(See  North  Dakota,  ante,  p.  763,  both  states  following  the  original  Dakota 
statute?,  except  as  follows). 

Sec.  604.9.  Within  Twenty  Years.  —  An  action  upon  a  judgment  or  decree  of 
any  court  of  the  United  States,  or  any  State  or  Territory,  other  than  this  State, 
within  the  United  States,  shall  be  commenced  within  ten  years  horn  the  date 
thereof;  provided,  that  where  [when]  ten  or  more  years  shall  have  expired  since 
the  rendition  of  such  a  judgment,  an  action  may  be  commenced  thereon  within 
two  years  from  the  taking  effect  of  this  act,  but  no  action  shall  be  maintain- 
able under  this  provision  which  is  not  commenced  within  twenty  years  after  the 
judgment  sued  on  was  rendered.  (This  does  not  follow  section  5200  of  North 
Dakota.) 

Sec.  6052.  This  contains  only  the  first  two  subdivisions  of  section  5203  of 
North  Dakota. 

Sec.  6059.  Absence.  —  This  is  the  same  as  section  5210  of  North  Dakota, 
except  that  it  omits  the  words  "  or  remain  continuously  absent  therefrom  for 
the  space  of  one  year  or  more." 

Sec.  6064..  Injunction.  —  This  is  the  same  as  section  5215  of  North  Dakota, 
except  that  it  omits  the  words  "  or  other  order  of  a  court  or  judge,  or  by." 


776  STATUTES   OF    LIMITATION. 

TENNESSEE. 

Code  (1896,   by  Shannon),  Part   III,   Chap.   2. 
Art.   II.  —  Limitation  ok  Real  Actions 

Sec.  4456.  Seven  Years  vests  Estate,  when.  —  Any  person  having  had,  by 
himself  or  those  through  whom  he  claims,  seven  years'  adverse  possession  of 
any  lands,  tenements,  or  hereditaments  granted  by  this  Stale  or  the  State  of 
North  Carolina,  holding  by  conveyance,  devise,  grant,  or  other  assurance 
of  title  purporting  to  convey  an  estate  in  fee,  without  any  claim  by  action  at  law 
or  in  equity  commenced  within  that  time  and  effectually  prosecuted  against 
him,  is  vested  with  a  good  and  indefeasible  title  in  fee  to  the  land  described  in 
his  assurance  of  title.  But  no  title  shall  be  vested  by  virtue  of  such  adverse 
possession,  unless  such  conveyance,  devise,  grant,  or  other  assurance  of  title 
shall  be  recorded  in  the  register's  office  for  the  county  or  counties  in  which  the 
land  lies  during  the  full  term  of  said  seven  years'  adverse  possession. 

Sec.  4457.  Seven  Years'  Neglect  bars  Action.  —  And,  on  the  other  hand,  any 
person,  and  those  claiming  under  him,  neglecting  for  the  said  term  of  seven 
years  to  avail  themselves  of  the  benefit  of  any  title,  legal  or  equitable,  by 
action  at  law  or  in  equity,  effectually  prosecuted  against  the  person  in  posses- 
sion, under  recorded  assurance  of  title,  as  in  the  foregoing  section,  are  forever 
barred. 

Sec.  4458.  Suit  must  be  brought  within  Seven  Years.  —  No  person,  or  any  one 
claiming  under  him,  shall  have  any  action,  either  at  law  or  in  equity,  for  any 
lands,  tenements,  or  hereditaments,  but  within  seven  years  after  the  right  of 
action  has  accrued. 

Sec.  4459.  School  Lands.  —  The  provisions  of  the  foregoing  sections  do  not 
apply  to  lands,  tenements,  or  hereditaments  reserved  for  the  use  of  schools. 

Sec.  4460.  Twenty  Years'  Adverse  Possession  bars  Husband  and  Wife,  -when. 

Sec.  4461.  What  Possession  is  not  adverse.  —  Possession  is  not  adverse, 
within  the  meaning  of  this  article,  as  to  any  person  claiming  a  right  or  interest 
in  the  land,  when  taken  and  continued  under  a  title  bond,  mortgage  or  other 
instrument  acknowledging  that  right  or  interest,  or  when  taken  and  continued 
in  subordination  to  the  right  or  interest  of  another. 

Sees.  4464,  4465.  Liens  on  Realty  barred  after  Ten  Years. 

Art.  III. — Limitation  of  Actions  other  than  real. 
Sec.  4466.  Actions  to  be  commenced  within  the  Time  limited.  —  All   civil 
actions,  other  than  those  for  causes  embraced  in  the  foregoing  article,  shall  be 
commenced  after  the  cause  of  action  has  accrued,  within  the  periods  prescribed 
in  this  chapter,  unless  otherwise  expressly  provided. 

1 1.67.    Property  lost  at  Gaming.  —  Within  ninety  days. 
Sec.  446S.   Slander. — Actions   for  slanderous   words  spoken    shall    be    com- 
menced within  six  months  after  the  words  are  uttered. 

Sec.  4400.  Libel,  Personal  Injuries,  Ac.  —  Actions  for  libel,  for  injuries  to 
the  person,  false  imprisonment,  malicious  prosecution,  criminal  conversation, 
seduction,  breach  of  marriage  promise,  and  statute  penalties,  within  one  year 
afir-r  ■  1  tion  accrued, 

\  170.   Injuries  to  Property,  &c.  —  Actions  for  injuries  to  personal  or  real 


TENNESSEE.  JJJ 

property;  actions  for  the  detention  or  conversion  of  personal  property,  within 
three  years  from  the  accruing  of  the  cause  of  action. 

Sec.  4471.  Against  Sureties  of  Collecting  Officer,  when  Process  returned 
satisfied  — Actions  against  sureties  of  any  collecting  officer,  for  failing  to  pay 
over  money  collected,  when  he  has  made  return  of  an  execution  or  other  pro- 
cess that  the  money  is  made  or  the  process  satisfied,  within  three  years  from  the 
return  of  the  process. 

Sec.  4472.  Use  and  Occupation,  Rent,  Surety  for  Official  Delinquencies,  Ac. 
—  Actions  for  the  use  and  occupation  of  land  and  for  rent;  actions  against  the 
sureties  of  guardians,  executors,  and  administrators,  sheriffs,  clerks,  and  other 
public  officers,  for  nonfeasance,  misfeasance,  and  malfeasance  in  office;  actions 
on  contracts  not  otherwise  expressly  provided  for,  within  six  years  after  the 
cause  of  action  accrued. 

Sec.  4473.  Guardians,  Executors,  Administrators,  Public  Officers,  on  Judg- 
ments, &c.  —  Actions  against  guardians,  executors,  administrators,  sheriffs, 
clerks,  and  other  public  officers  on  their  bonds,  actions  on  judgments  and 
decrees  of  courts  of  record  of  this  or  any  other  State  or  government,  and  all 
other  cases  not  expressly  provided  for,  within  ten  years  after  the  cause  of 
action  accrued. 

Sec.  4474.  Exception  in  Favor  of  Merchants'  Accounts.  —  The  limitations 
herein  provided  do  not  apply  lo  such  actions  as  concern  the  trade  of  merchan- 
dise between  merchant  and  merchant,  their  agents  and  factors,  while  the 
accounts  between  them  are  current. 

Sec.  4475.  Mutual  Accounts  between  Individuals.  —  When  there  are  mutual 
accounts  between  persons  who  are  not  merchants,  the  time  is  computed  from 
the  true  date  of  the  last  item,  unless  the  account  is  liquidated  and  a  balance 
struck. 

Sec.  4476.  Note  issued  as  Money.  —  The  provisions  of  this  chapter  do  not 
apply  to  actions  to  enforce  payment  of  bills,  notes,  or  other  evidences  of  debt 
issued  or  put  in  circulation  as  money. 

Sec.  4477.  Time  runs  from  Accrual  of  Right,  not  Demand.  —  When  a  right 
exists  but  a  demand  is  necessary  to  entitle  the  party  to  an  action,  the  limitation 
commences  from  the  time  the  plaintiff's  right  to  make  the  demand  was  com- 
pleted, and  not  from  the  date  of  the  demand. 

Sec.  4480.  Action  barred  in  another  State.  —  When  the  statute  of  limitations 
of  another  State  or  government  has  created  a  bar  to  an  action  upon  a  cause 
accruing  therein,  whilst  the  party  to  be  charged  was  a  resident  in  such  State  or 
under  such  government,  the  bar  is  equally  effectual  in  this  State. 

Sec.  4481.  Against  Personal  Representative  by  Resident,  Two  Years,  and  by 
Non-resident,  Three  Years. 

Sec.  4482.  Delay  upon  such  Representative's  Special  Request  not  counted. 

Sec.  4483.  Seven  Years'  Bar  in  Favor  of  Decent's  Estates.  —  But  all  actions 
against  the  personal  representatives  of  a  decedent  for  demands  against  such 
decedent  shall  be  brought  within  seven  years  after  his  death,  notwithstanding 
any  disability  existing;  otherwise  they  will  be  forever  barred. 

Sec.  4012.  Suits  against  Decedents'  Estates.  —  The  creditors  of  deceased  per- 
sons, if  they  reside  within  this  State,  shall  within  two  years,  and  if  without, 
shall,  within  three  years,  from  the  qualification  of  the  executor  or  administrator, 
exhibit  to  them  their  accounts,  debts  and  claims,  and  make  demand,  and  bring 
suit  for  the  recovery  thereof,  or  be  forever  barred  in  law  and  equity. 


7/8  STATUTES   OF   LIMITATION. 

Sec.  4013.  Suspension  through  Request  of  Executor.  —  But  if  any  creditor, 
after  making  demand  of  his  debt  or  claim,  delay  to  bring  suit  for  a  definite 
time,  at  the  special  request  of  the  executor  or  administrator,  the  time  of  such 
delay  shall  not  be  counted  in  said  periods  of  limitation. 

Sec  5096.  Forcible  Entry  and  Detainer.  —  The  uninterrupted  occupation  or 
quiet  possession  of  the  premises  in  controversy  by  the  defendant,  for  the  space 
of  three  entire  years  together,  immediately  preceding  the  commencement  of  the 
action,  is,  if  the  estate  of  the  defendant  has  not  determined  within  that  time,  a 
bar  to  any  proceeding  under  this  article. 


TEXAS. 

REVISED  STATUTES,   1895.     Title  67. 

Limitations. 
Chap.   i.  —  Limitation  of  Actions  for  Land. 

Art.  3340.  Three  Years'  Possession,  ■when  a  Bar.  —  Every  suit  to  be  instituted 
to  recover  real  estate,  as  against  any  person  in  peaceable  and  adverse  posses- 
sion thereof  under  title  or  color  of  title,  shall  be  instituted  within  three  years 
next  after  the  cause  of  action  shall  have  accrued,  and  not  afterward. 

Art.  3341.  "Title"  and  "  Color  of  Title"  defined. 

Art.  3342.  Five  Years'  Possession,  when  a  Bar.  —  Every  suit  to  be  instituted 
to  recover  real  estate  as  against  any  person  having  peaceable  and  adverse  pos- 
session thereof,  cultivating,  using,  or  enjoying  the  same  and  paying  taxes 
thereon,  if  any,  and  claiming  under  a  deed  or  deeds  duly  registered,  shall  be 
instituted  within  five  years  next  after  the  cause  of  action  shall  have  accrued,  and 
not  afterward:  Provided,  that  this  article  shall  not  apply  to  any  one  in  posses- 
sion of  land,  who,  in  the  absence  of  this  article,  would  deraign  title  through  a 
forged  deed:  Provided,  further,  that  no  one  claiming  under  a  forged  deed,  or 
deed  executed  under  a  forged  power  of  attorney,  shall  be  allowed  the  benefits 
of  this  article. 

Art.  3343.  Ten  Years'  Possession,  when  a  Bar.  —  Any  person  who  has  a  right 
of  action  for  the  recovery  of  any  lands,  tenements,  or  hereditaments  against 
another  having  peaceable  and  adverse  possession  thereof,  cultivating,  using, 
or  enjoying  the  same,  shall  institute  his  suit  therefor  within  ten  years  next 
after  his  cause  of  action  shall  have  accrued,  and  not  afterward. 

Arts.  3344-3346,  3349.  Adverse  Possession  defined. 

Art.  3347.  Possession  gives  full  Title,  when.  —  Whenever  in  any  case  the 
1  lion  of  a  person  for  the  recovery  of  real  estate  is  barred  by  any  of  the  pro- 
visions of  this  chapter,  the  person  having  such  peaceable  and  adverse  possession 
shall  be  held  to  have  full  title,  precluding  all  claims. 

An.  3350.  Possession  may  be  held  by  Different  Persons. —  Peaceable  and 
adverse  possession  need  not  be  continued  in  the  same  person,  but  when  held 
by  different  persons  successively  there  must  be  a  privity  of  estate  between  them. 

Art  33^1.  Limitation  not  to  run  against  State  nor  favor  Adverse  Holder  of 
Road.  [As  Amended  1887,]  —  As  to  university  and  asylum  lands,  see  Acts  of 
1899,  chap.  150. 


TEXAS.  779 

Art.  3352.  Does  not  run  against  Infants,  Married  Women,  &c.  —  If  a  person 
eniitled  to  commence  suit  for  the  recovery  of  real  property,  or  to  make  any 
defense  founded  on  the  title  thereto,  be,  at  the  time  such  title  shall  firsi  descend 
or  the  adverse  possession  commence,  — 

1.  Under  the  age  of  twenty-one  years;  or, 

2.  Of  unsound  mind;  or, 

3.  A  person  imprisoned, 

the  time  during  which  such  disability  shall  continue  shall  not  be  deemed  any 
portion  of  the  time  limited  for  the  commencement  of  such  suit,  or  the  making 
of  such  defense;  and  such  person  shall  have  the  same  time  after  the  removal  of 
his  disability  that  is  allowed  to  others  by  the  provisions  of  this  chapter:  Pro- 
vided, that  limitation  shall  not  begin  to  run  against  married  women  until  they 
arrive  at  the  age  of  twenty-one  years;  and,  further,  that  their  disability  shall 
continue  one  year  from  and  after  the  passage  of  this  act,  and  that  they  shall 
have  thereafter  the  same  time  allowed  others  by  the  provisions  hereof;  and, 
further,  that  this  act  shall  in  no  way  affect  suits  that  are  now  or  may  be  pend- 
ing when  the  same  takes  effect,  and  all  such  suits  shall  be  tried  and  disposed  of 
under  the  law  now  in  force.     (As  amended  by  the  Act  of  April  1,  i8gj,  chap.  30.) 

Chap.   2.  Limitation  of  Personal  Actions. 
Art.  3353.  Actions  to  be  commenced  in  One  Year.  —  1.  Actions  for  injuries 
done  to  the  person  of  another. 

2.  Actions  for  malicious  prosecution  or  for  injuries  done  10  the  character  or 
reputation  of  another  by  libel  or  slander. 

3.  Actions  for  damages  for  seduction,  or  breach  of  promise  of  marriage. 

4.  Actions  for  injuries  done  to  the  person  of  another  where  death  ensued  from 
such  injuries;  and  the  cause  of  action  shall  be  considered  as  having  accrued  at 
the  death  of  the  party  injured. 

Art.  3353a.  Survival  of  such  cause  of  Action. 

Art.  3354.  Actions  to  be  commenced  in  Two  Years.  —  1.  Actions  of  trespass 
for  injury  done  to  the  estate  or  the  property  of  another. 

2.  Actions  for  detaining  the  personal  property  of  another,  and  for  converting 
such  personal  property  to  one's  own  use. 

3.  Aclions  for  taking  or  carrying  away  the  goods  and  chattels  of  another. 

4.  Actions  for  debt  where  the  indebtedness  is  not  evidenced  by  a  contract  in 
writing. 

5.  Actions  upon  stated  or  open  accounts,  other  than  such  mutual  and  current 
accounts  as  concern  the  trade  of  merchandise  between  merchant  and  merchant, 
their  factors  or  agents. 

Art.  3355.  Shall  run  against  each  Item,  when.  —  In  all  accounts,  except  those 
between  merchant  and  merchant  as  aforesaid,  their  factors  and  agents,  the 
respective  times  or  dates  of  the  delivery  of  the  several  articles  charged  shall  be 
particularly  specified,  and  limitation  shall  run  against  each  item  from  the  date 
of  such  delivery,  unless  otherwise  specially  contracted. 

Art.  3356.  What  Actions  barred  in  Four  Years.  —  1.  Actions  for  debt  where 
the  indebtedness  is  evidenced  by  or  founded   upon  any  contract  in  writing. 

2.  Actions  for  the  penalty  or  for  damages  on  the  penal  clause  of  a  bond  to 
convey  real  estate. 

3.  Actions  by  one  partner  against  his  copartner  for  a  settlement  of  the  part- 
nership accounts,  or  upon  mutual  and  current  accounts  concerning  the  trade  of 


ySo  STATUTES   OF    LIMITATION. 

merchandise  between  merchant  and  merchant,  their  factors  or  agenls;  and  the 
cause  of  action  shall  be  considered  as  having  accrued  on  a  cessation  of  the 
dealings  in  which  they  were  interested  together. 

Art.  3357.  On  Bond  of  Executor,  Administrator,  or  Guardian.  — All  suits  on 
the  bond  of  any  executor,  administrator  or  guardian  shall  be  commenced  and 
prosecuted  within  four  years  next  after  the  death,  resignation,  removal,  or  dis- 
charge of  such  executor,  administrator,  or  guardian,  and  not  thereafter. 

Art.  3358.  All  other  Actions.  —  Every  action  other  than  for  the  recovery  of 
real  estate,  for  which  no  limitation  is  otherwise  prescribed,  shall  be  brought 
within  four  years  next  after  the  right  to  bring  the  same  shall  have  accrued,  and 
not  afterward. 

Art.  3359.  Actions  on  Foreign  Judgments.  —  Every  action  upon  a  judgment 
or  decree  rendered  in  any  other  State  or  Territory  of  the  United  States,  in  the 
District  of  Columbia,  or  in  any  foreign  country,  shall  be  barred,  if  by  the  laws 
of  such  State  or  country  such  action  would  then  be  barred,  and  the  judgment 
or  decree  be  incapable  of  being  otherwise  enforced  there;  and  whether  so  barred 
or  not,  no  action  against  a  person  who  shall  have  resided  in  this  State  during 
the  ten  years  next  preceding  such  action  shall  be  brought  upon  any  such  judg- 
ment or  decree  rendered  more  than  ten  years  before  the  commencement  of  such 
action. 

Art.  3360.  Actions  fcr  Specific  Performance.  —  Any  action  for  the  specific 
performance  of  a  contract  for  the  conveyance  of  real  estate  shall  be  commenced 
within  ten  years  next  after  the  cause  of  action  shall  have  accrued,  and  not  after- 
ward. 

Art.  3363.  On  the  Action  of  Forcible  Entry,  &c.  —  No  action  of  forcible  entry 
or  forcible  detainer,  as  provided  for  by  law,  shall  be  prosecuted  at  any  time 
after  two  years  from  ihe  commencement  of  the  forcible  entry  or  detainer. 

Art.  3364.  On  Actions  to  contest  a  Will.  —  Within  four  years. 


Chap.   3.  —  General  Provisions. 

Art.  3371.  Limitation  must  be  pleaded,  &c.  — The  laws  of  limitation  of  this 
State  shall  not  be  made  available  to  any  person  in  any  suit  in  any  of  the  courts 
of  this  State,  unless  it  be  specially  set  forth  as  a  defense  in  this  answer. 

Art.  5257.  Action  of  Trespass  to  try  Title.  —  In  actions  of  trespass  to  try 
title,  the  defense  of  limitation  must  be  specially  pleaded 


UTAH. 

REVISHD  STATUTES.     Title  73. 

Code  of  Civil  Procedure. 

Chat.  i.  —  Time  of  commencing  Actions  in  General. 

(3129)  Sec.  175.  When  Time  commences  to  run.  —  That  civil  actions  can  only 
be  commenced  within  the  period  prescribed  in  this  act  after  the  cause  of  action 
sh  ill  have  accrued,  except  where  a  different  limitation  i?  prescribed  by  statute. 


UTAH.  781 

Chap.  3.  Real  Property. 

Sec.  2859.  Suits  for  Real  Property.  —  No  action  for  the  recovery  of  real  prop- 
erty, or  for  recovery  of  the  possession  thereof,  shall  be  maintained,  unless  it 
appear  that  the  plaintiff,  his  ancestor,  grantor,  or  predecessor,  was  seised  or 
possessed  of  the  property  in  question  within  seven  years  before  the  commence- 
ment of  the  action. 

Sec.  2860.  Suits  for  Rights  growing  out  of  Real  Property.  —  No  cause  of 
action,  or  defense  to  an  action,  founded  upon  the  title  to  real  property  or  to 
rents  or  profits  out  of  the  same,  shall  be  effectual,  unless  it  appear  that  the  per- 
son prosecuting  the  action,  or  interposing  the  defense  or  counterclaim,  or  under 
whose  title  the  action  is  prosecuted  or  defense  or  counterclaim  is  made,  or  the 
ancestor,  predecessor,  or  grantor  of  such  person,  was  seised  or  possessed  of  the 
premises  in  question  within  seven  years  before  the  committing  of  the  act,  in 
respect  to  which  such  action  is  prosecuted  or  defense  or  counterclaim  made. 

Sec.  2861.  Presumption  of  Possession.  —  In  every  action  for  the  recovery  of 
real  property,  or  the  possession  thereof,  the  person  establishing  a  legal  title  to 
the  property  shall  be  presumed  to  have  been  possessed  thereof  within  the  time 
required  by  law,  and  the  occupation  of  the  property  by  any  other  person  shall 
be  deemed  to  have  been  under  and  in  subordination  to  the  legal  title,  unless  it 
appear  that  the  property  has  been  held  and  possessed  adversely  to  such  legal 
title  for  seven  years  before  the  commencement  of  the  action. 

Sec.  2862.  Effect  of  Color  of  Title.  —  Whenever  it  shall  appear  that  the  occu- 
pant, or  those  under  whom  he  claims,  entered  into  the  possession  of  the  prop- 
erty, under  claim  of  title  exclusive  of  any  other  right,  founding  such  claim 
upon  a  written  instrument,  as  being  a  conveyance  of  the  property  in  question, 
or  upon  the  decree  or  judgment  of  a  competent  court,  and  that  there  has  been 
a  continued  occupation  and  possession  of  the  property  included  in  such  instru- 
ment, decree,  or  judgment,  or  of  some  part  of  the  property  under  such  claim, 
for  seven  years,  the  property  so  included  shall  be  deemed  to  have  been  held 
adversely,  except  that  where  the  property  so  included  consists  of  a  tract  divided 
into  lots,  the  possession  of  one  lot  shall  not  be  deemed  a  possession  of  any 
other  lot  of  the  same  tract. 

Sees.  2863-2866.  Adverse  Possession  defined. 

Chap.  4.  —  Limitations  other  than  Real  Property. 

Sec.  2874.  Eight  Years.  —  An  action  upon  a  judgment  or  decree  of  any  court 
of  the  United  Slates,  or  of  any  State  or  Territory  within  the  United  States. 

Sec.  2875.   Six  Years.  —  1.   An  action  for  the  mesne  profits  of  real  property. 

2.  An  action  upon  any  contract,  obligation,  or  liability,  founded  upon  an 
instrument  of  writing,  except  those  mentioned  in  the  preceding  section. 

Sec.  2876.  Contract  not  in  Writing,  Four  Years.  —  An  action  upon  a  contract, 
obligation,  or  liability  not  founded  upon  an  instrument  of  writing;  also  on  an 
open  account  for  goods,  wares,  and  merchandise,  and  for  any  article  charged 
in  a  store  account:  provided,  that  action  in  said  cases  may  be  commenced  at 
any  time  within  four  years  after  the  last  charge  is  made,  or  the  last  payment  is 
received. 

Sec.  2877.  Three  Years.  Fraud,  Ac.  —  1.  An  action  for  a  liability  created  by 
statute,  other  than  a  penalty  or  forfeiture. 

2.  An  action  for  waste  or  trespass  of  real  property;  provided,  that  when  the 


782  STATUTES   OF    LIMITATION. 

waste  or  trespass  is  committed  by  means  of  underground  works  upon  any  min- 
ing claim,  the  cause  of  action  shall  not  be  deemed  to  have  accrued  until  the  dis- 
covery by  the  aggrieved  party  of  the  facts  constituting  such  waste  or  trespass. 

3.  An  action  for  taking,  detaining,  or  injuring  personal  property,  including 
actions  for  the  specific  recovery  thereof. 

4.  An  action  for  relief  on  the  ground  of  fraud  or  mistake;  the  cause  of  action 
in  such  case  not  to  be  deemed  to  have  accrued  until  the  discovery  by  the 
aggrieved  party  of  the  facts  constituting  the  fraud  or  mistake. 

Sec.  2878.  Two  Years.  —  1.  An  action  against  a  marshal,  sheriff,  constable,  or 
other  officer  upon  a  liability  incurred  by  the  doing  of  an  act  in  his  official 
capacity,  and  in  virtue  of  his  office,  or  by  the  omission  of  an  official  duty, 
including  the  nonpayment  of  money  collected  upon  an  execution.  But  this 
section  shall  not  apply  to  an  action  for  an  escape. 

2.  An  action  to  recover  damages  for  the  death  of  one  caused  by  the  wrongful 
act  or  neglect  of  another. 

Sec.  2879.  One  Year.  —  1.  An  action  upon  a  statute  for  a  penalty  or  forfeiture 
where  the  action  is  given  to  an  individual,  or  to  an  individual  anl  the  State, 
except  when  the  statute  imposing  it  prescribes  a  different  limitation. 

2.  An  action  upon  a  statute,  or  upon  an  undertaking  in  a  criminal  action,  for 
a  forfeiture  or  penalty  to  the  State. 

3.  An  action  for  libel,  slander,  assault,  battery,  false  imprisonment,  or 
seduction. 

4.  An  action  against  a  sheriff,  or  other  officer,  for  the  escape  of  a  prisoner 
arrested  or  imprisoned  upon  either  civil  or  criminal  process. 

5.  An  action  against  a  municipal  corporation  for  damages  or  injuries  to  prop- 
erty caused  by  a  mob  or  riot. 

Sec.  2S80.   Six  Months.  —  An  action  against  an  officer,  or  officers  de  facto:  — 

1.  To  recover  any  goods,  wares,  merchandise,  or  other  property,  seised  by 
any  such  officer  in  his  official  capacity,  as  tax  collector,  or  to  recover  the  price 
or  value  of  any  goods,  wares,  merchandise,  or  other  personal  property  so 
seised,  or  lor  damages  for  the  seizure,  detention,  sale  of,  or  injury  to  any 
goods,  wares,  merchandise,  or  other  personal  property  seised,  or  for  damages 
done  to  any  person  or  property  in  making  any  such  seizure. 

2.  For  money  paid  to  any  such  officer  under  protest,  or  seized  by  such  officer 
in  his  official  capacity,  as  a  collector  of  taxes,  and  which,  it  is  claimed,  ought 
to  be  refunded. 

Sec.  2881.  On  Claim  against  County,  One  Year.  —  Actions  on  claims  against 
a  county,  which  have  been  rejected  by  the  county  court,  must  be  commenced 
within  one  year  after  the  first  rejection  thereof  by  such  court. 

Sec.  2882.  Open  Account.  —  In  an  action  brought  to  recover  a  balance  due 
upon  a  mutual,  open,  and  current  account,  where  there  have  been  reciprocal 
demands  between  parties,  the  cause  of  action  shall  be  deemed  to  have  accrued 
from  the  time  of  the  last  item  proved  in  the  account  on  either  side. 

2883.  Excepted  Cases.  —  An  action  for  relief  not  hereinbefore  provided 
for  must  be  commenced  within  four  years  after  the  cause  of  action  shall  have 
accrued. 

2887.  Bank  Deposits.  —  To  actions  brought  to  recover  money  or  other 
property  deposited  with  any  bank,  banker,  trust  company,  or  savings  or  loan 
corporation,  assoi  iation,  <>r  S0(  iety,  there  is  no  limitation. 

Sec.  2S90.   Limitation  Laws  of  other  States.  —  When  a  cause  of  action  has 


VERMONT.  783 

arisen  in  another  State  or  Territory,  or  in  a  foreign  country,  and  by  the  laws 
thereof  an  action  thereon  cannot  there  be  maintained  against  a  person  by  rea- 
son of  the  lapse  of  lime,  an  action  thereon  shall  not  be  maintained  against  him 
in  this  Territory,  except  in  favor  of  one  who  has  been  a  citizen  of  this  Territory, 
and  who  has  held  the  cause  of  action  from  the  lime  it  accrued. 


VERMONT. 

STATUTES,   1894.     Chap.  63. 

Sec.  1193.  Actions  to  recover  Lands.  —  No  action  for  the  recovery  of  lands, 
or  the  possession  thereof,  shall  be  maintained,  unless  commenced  within  fifteen 
years  after  the  cause  of  action  first  accrues  to  the  plaintiff,  or  those  under  whom 
he  claims. 

Sec.  1194.  Entry  into  Houses  or  Lands.  —  No  person  having  right  or  title  of 
entry  into  houses  or  lands,  shall  enter  after  fifteen  years  after  such  right  of  entry 
accrues. 

Sec.  rigs.  Actions  on  a  Covenant  of  Ssisin.  —  Actions  of  covenant,  brought 
on  a  covenant  of  seisin  in  a  deed  of  conveyance  of  land,  shall  be  brought  within 
fifteen  years  after  the  cause  of  action  accrues,  and  not  after. 

Sec.  1196.  On  Judgments. — Actions  of  debt  or  scire  facias  on  judgment 
shall  be  brought  within  eight  years  next  after  the  rendition  of  such  judgment, 
and  actions  of  debt  on  specialties  within  eight  years  after  the  cause  of  action 
accrues,  and  not  after. 

Sec.  1197.  On  Covenants,  unless  of  Warranty  or  Seisin.  —  Actions  of  cove- 
nant, other  than  the  covenants  of  warranty  and  seisin,  contained  in  deeds  of 
lands,  shall  be  brought  within  eight  years  after  the  cause  of  action  accrues,  and 
not  after. 

Sec.  1198.  On  a  Covenant  of  Warranty.  —  Actions  of  covenant,  brought  on  a 
covenant  of  warranty  in  a  deed  of  land,  shall  be  brought  within  eight  years  after 
a  final  decision  against  the  title  of  the  covenantor  in  such  deed. 

Sec.  1 199.  On  Simple  Contracts,  Foreign  Judgments,  and  on  the  Case.  —  The 
following  actions  shall  be  commenced  within  six  years  after  the  cause  of  action 
accrues,  and  not  after:  — 

Actions  of  debt  founded  upon  a  contract,  obligation,  or  liability,  not  under 
seal,  or  upon  the  judgment  of  a  court,  excepting  such  as  are  brought  upon  the 
judgment  or  decree  of  a  court  of  record  of  the  United  States,  or  of  this  or  some 
other  State. 

Actions  of  debt  for  rent. 

Actions  of  account,  assumpsit,  or  on  the  case,  founded  on  any  contract  or 
liability,  expressed  or  implied. 

Actions  of  trespass  upon  land. 

Actions  of  replevin,  and  other  actions  for  taking,  detaining  or  injuring  goods 
or  chattels. 

Other  actions  on  the  case,  except  actions  for  slanderous  words  and  for  libels. 

Sec.  1201.  On  Witnessed  Notes.  —  The  foregoing  provisions  shall  not  apply 
to  an  action  brought  on  a  promissory  note  signed  in  the  presence  of  an  attest- 
ing witness;  but  such  action  shall  be  commenced  wilh\n  fourteen  years  after  the 
cause  of  action  accrues,  and  not  after. 


784  STATUTES   OF   LIMITATION. 

Sec.  1202.  On  Evidences  of  Debt  issued  by  Moneyed  Corporations.  —  The 

provisions  of  this  chapter  shall  not  apply  to  suits  brought  to  enforce  payment 
on  bills,  notes,  or  other  evidences  of  debt  issued  by  moneyed  corporations. 

Sec.  1203.  Demands  Alleged  in  Offset.  —  The  provisions  of  this  chapter  shall 
apply  to  debts  and  contracts  alleged  by  way  of  offset,  and  the  time  of  limitation 
of  such  debts  or  contracts  shall  be  computed  as  if  an  action  had  been  com- 
menced thereon  at  the  time  of  the  commencement  of  the  plaintiff's  action. 

Sec.  1204.  Action  against  Sheriffs  for  Deputies'  Misfeasance. — Actions 
against  sheriffs,  for  the  misconduct  or  negligence  of  their  deputies,  shall  be 
commenced  within  four  years  after  the  cause  of  action  accrues,  and  not  after. 

Sec,  T205.  Assault  and  Battery  False  Imprisonment.  —  Actions  for  assault 
and  battery,  and  for  false  imprisonment,  shall  be  commenced  within  three  years 
after  the  cause  of  action  accrues,  and  not  after. 

Sec.  1206.  Slanderous  Words  and  Libels.  —  Actions  for  slanderous  words, 
and  for  libels,  shall  be  commenced  within  two  years  after  the  cause  of  action 
accrues,  and  not  after. 

Sec.  1207.  Actions  to  recover  money  paid,  under  protest,  for  taxes,  shall  be 
commenced  within  one  year  after  the  cause  of  action  accrues,  and  not  after. 

By  section  2452  an  action  by  the  personal  representative  to  Recover  for 
Death  resulting  from  a  wrongful  act,  neglect,  etc.,  must  be  commenced  within 
two  years  from  the  decease. 

SUPPLEMENTAL  ACTS. 

By  the  Act  of  1896,  chap.  30,  the  above  chapter  is  not  to  apply  to  actions 
against  school  districts  during  a  vacancy  in  the  office  of  clerk  and  prudential 
committee. 

The  Act  of  iqoo,  chap.  34,  prescribes  the  time  for  enforcing  the  liability  of 
stockholders  in  foreign  corporations. 


VIRGINIA. 

CODE,  1887.     Title  42,  Chap.  139. 

Limitation  of  Suits. 

Sec.  2915.  Limitation  of  Entry.  —  No  person  shall  make  an  entry  on,  or  bring 
an  action  to  recover,  any  land  lying  east  of  the  Alleghany  Mountains,  but  shall 
be  allowed,  without  pleading  it,  to  show  such  promise  in  evidence  to  repel  the 
bar  of  the  plea,  provided  he  shall  have  given  the  defendant  reasonable  notice, 
before  the  trial,  of  his  intenlion  to  rely  on  such  promise.  An  acknowledgment 
in  writing  as  aforesaid,  from  which  a  promise  of  payment  may  be  implied,  shall 
be  deemed  to  be  such  promise  in  the  meaning  of  this  section. 

.  2<)i6.  Right  not  saved  by  Claim.  —  No  continual  or  other  claim  upon  or 
near  any  land  shall  preserve  any  right  of  making  an  entry  or  of  bringing  an 
action. 

.  2919.  Period  of  Civil  War  excluded.     {Amended  by  the  Act  of  1888,  chap. 

2f)2n.  Limitation  of  Portions!  Actions  generally.  —  Every  action  to  recover 


VIRGINIA.  785 

money  which  is  founded  upon  an  award,  or  on  any  contract  other  than  a  judg- 
ment or  recognizance,  shall  be  brought  within  the  following  number  of  years 
next  after  the  right  to  bring  the  same  shall  have  first  accrued,  that  is  to  say:  if 
the  case  be  upon  an  indemnifying  bond  taken  under  any  statute,  or  upon  a  bond 
of  an  executor,  administrator,  guardian,  curator,  committee,  sheriff  or  sergeant, 
clerk  or  deputy-clerk,  or  any  other  fiduciary  or  public  officer,  or  upon  any  other 
contract  by  writing  under  seal,  within  ten  years;  if  ir  be  upon  an  award,  or  be 
upon  a  contract  by  writing,  signed  by  the  party  to  be  charged  thereby,  or  by 
his  agent,  but  not  under  seal,  within  five  years;  and  if  it  be  upon  any  oral  con- 
tract, express  or  implied,  for  any  articles  charged  in  a  store  account,  although, 
such  articles  be  sold  on  a  written  order,  within  two  years;  and  if  it  be  upon  any 
other  contract,  within  three  years,  unless  it  be  an  action  by  one  partner  against 
his  copartner  for  a  settlement  of  the  partnership  accounts,  or  upon  accounts 
concerning  the  trade  of  merchandise  between  merchant  and  merchant,  their 
factors  or  servants,  where  the  action  of  account  would  lie,  in  either  of  which 
cases  the  action  may  be  brought  until  the  expiration  of  five  years  from  a  cessa- 
tion of  the  dealings  in  which  they  are  interested  together,  but  not  after:  pro- 
vided, that  the  right  of  action  against  the  estate  of  any  person  hereafter  dying, 
or  any  such  award  or  contract,  which  shall  have  accrued  at  the  time  of  his 
death,  or  the  right  to  prove  any  such  claim  against  his  estate  in  any  suit  or  pro- 
ceeding, shall  not  in  any  case  continue  longer  than  Jive  years  from  the  qualifica- 
tion of  his  personal  representative,  or  if  the  right  of  action  shall  not  have 
accrued  at  the  time  of  the  decedent's  death,  it  shall  not  continue  longer  than 
five  years  after  the  same  shall  have  so  accrued. 

Sec.  2923.  Effect  of  Promise  of  Personal  Representative  or  Joint  Contractor. 
—  No  acknowledgment  or  promise  by  any  personal  representative  of  a  decedent, 
or  by  one  of  two  or  more  joint  contractors,  shall  charge  the  estate  of  such 
decedent,  or  charge  any  other  of  such  contractors,  in  any  case  in  which  but  for 
such  acknowledgment  or  promise  the  decedent's  estate  or  another  contractor 
could  have  been  protected  under  section  2920. 

Sec.  2924.  Effect  on  Right  of  Action  of  Devise  for  Payment  of  Debts.  —  No 
provision  in  the  will  of  any  testator  devising  his  real  estate,  or  any  part  thereof, 
subject  to  the  payment  of  his  debts,  or  charging  the  same  therewith,  shall  pre- 
vent this  chapter  from  operating  against  such  debts,  unless  it  plainly  appear  to 
be  the  testator's  intent  that  it  shall  not  so  operate. 

Sec.  2925.  Limitation  of  Actions,  &c,  on  Recognizances,  Ten  Years. 

Sec.  2927.  Of  Actions  not  before  specified.  —  Every  personal  action  for  which 
no  limitation  is  otherwise  prescribed  shall  be  brought  within  five  years  next 
after  the  right  to  bring  the  same  shall  have  accrued,  if  it  be  for  a  matter  of  such 
nature  that  in  case  a  party  die  it  can  be  brought  by  or  against  his  representa- 
tive; and  if  it  be  for  a  matter  not  of  such  nature,  shall  be  brought  within  one 
year  next  after  the  right  to  bring  the  same  shall  have  accrued. 

Sec.  2928.  Actions  on  Judgments,  &c,  of  another  State.  —  Every  action  upon 
a  judgment  or  decree  rendered  in  any  other  State  or  country  shall  be  barred,  if 
by  the  laws  of  such  State  or  country  such  action  would  then  be  barred,  and  the 
judgment  or  decree  be  incapable  of  being  otherwise  enforced  there;  and, 
whether  so  barred  or  not,  no  action  against  a  person  who  shall  have  resided  in 
this  State  during  the  ten  years  next  preceding  such  action  shall  be  brought 
upon  any  such  judgment  or  decree,  rendered  more  than  ten  years  before  the 
commencement  of  such  action. 
[stats,  of  lim.  —  50] 


786  STATUTES   OF   LIMITATION. 

Sec.  2929.  Suits  to  avoid  Voluntary  Deeds,  &c,  and  to  repeal  Grants,  Five 
Years. 

Sec.  2933.  Saving   to   Plaintiff  where   suing   was  prevented  by  Defendant. 

{Amended  by  the  Aet  of  i8g8,  chap.  404.) 

Sec.  2934.  Further  Time  given  when  suit  abates.  {Amended  by  the  Act  of 
1898,  chap.  226.) 

Sec.  2935.  Mortgages,  &c,  by  Natural  Person.  {Amended  by  the  Act  of  1898, 
chap.  487.) 

Chap.  123,  Sec.  2716,  limits  an  Action  for  Forcible  Entry  and  Detainer 
within  three  years  after  such  forcible  or  unlawful  entry,  or  such  unlawful 
detainer. 

Chap.  127,  Sec.  2790,  limits  a  Distress  for  Rent  within  five  years  from  the 
time  it  becomes  due,  and  not  afterwards,  whether  the  lease  be  ended  or  not. 


WASHINGTON. 
CODES  AND  STATUTES,  (by  Ballinger,  1897.)    Title  27,  Chap.  3. 

Sec.  4796.  Actions  can  only  be  commenced  within  the  period  herein  prescribed 
after  the  cause  of  action  shall  have  accrued,  except  when  in  special  cases  a 
different  limitation  is  prescribed  by  statute;  but  the  objection  that  the  answer 
was  not  commenced  within  the  time  limited  can  only  be  taken  by  answer  or 
demurrer. 

Sec.  479".  Within  Ten  Years.  —  Actions  for  the  recovery  of  real  property,  or 
for  the  recovery  of  the  possession  thereof;  and  no  action  shall  be  maintained 
for  such  recovery  unless  it  appear  that  the  plaintiff,  his  ancestor,  predecessor, 
or  grantor,  was  seized  or  possessed  of  the  premises  in  question  within  ten  years 
before  the  commencement  of  the  action. 

Sec.  4798.  Within  Six  Years.  —  1.  An  action  upon  a  judgment  or  decree  of 
any  court  of  the  United  States,  or  of  any  State  or  Territory  within  the  United 
States. 

2.  An  action  upon  a  contract  in  writing,  or  liability  express  or  implied  arising 
out  of  a  written  agreement. 

3.  An  action  for  the  rents  and  profits  or  for  the  use  and  occupation  of  real 
estate. 

Sec.  4799.  Within  Five  Years.  —  No  action  for  the  recovery  of  any  real  estate 
sold  by  an  executor  or  administrator  under  the  laws  of  this  State,  or  the  laws 
of  the  Territory  of  Washington,  shall  be  maintained  by  any  heir  or  other  person 
claiming  under  the  deceased,  unless  it  is  commenced  within  five  years  next  after 
the  sale,  and  no  action  for  any  estate  sold  by  a  guardian  shall  be  maintained 
by  the  ward,  or  by  any  person  claiming  under  him,  unless  commenced  within 
•ars  next  after  the  termination  of  the  guardianship,  except  that  minors  and 
oilier  persons  under  legal  disability  to  sue  at  the  time  when  the  right  of  action 
first  accrued  may  commence  such  action  at  any  time  within  three  years  after  the 
removal  of  the  disability. 

Sec.  4800.  Within  Three  Years.  —  1.  An  action  for  waste  or  trespass  upon  real 
property; 

2.   An   arti'/ii  f  >r  taking,  detaining,  or  injuring  personal   property,  including 


WASHINGTON.  787 

an  action  for  the  specific  recovery  thereof,  or  for  any  other  injury  to  the  person 
or  rights  of  another  not  hereinafter  enumerated; 

3.  An  action  upon  a  contract  or  liability,  express  or  implied,  which  is  not  in 
writing,  and  does  not  arise  out  of  any  written  agreement; 

4.  An  action  for  relief  upon  the  ground  of  fraud,  the  cause  of  action  in  such 
case  not  to  be  deemed  to  have  accrued  until  the  discovery  by  the  aggrieved 
party  of  the  facts  constituting  the  fraud; 

5.  An  action  against  a  sheriff,  coroner,  or  constable  upon  a  liability  incurred 
by  the  doing  of  an  act  in  his  official  capacity  and  by  virtue  of  his  office,  or  by 
the  omission  of  an  official  duty,  including  the  nonpayment  of  money  collected 
upon  an  execution;  but  this  subdivision  shall  not  apply  to  action  for  an  escape; 

6.  An  action  upon  a  statute  for  penalty  or  forfeiture,  where  an  action  is  given 
to  the  party  aggrieved,  or  to  such  party  and  the  State,  except  when  the  statute 
imposing  it  prescribed  a  different  penalty  [limitation]; 

7.  An  action  for  seduction  and  breach  of  promise  of  marriage. 

Sec.  4801.  Within  Two  Years.  —  1.  An  action  for  libel,  slander,  assault, 
assault  and  battery,  and  false  imprisonment. 

2.   An  action  upon  a  statute  for  a  forfeiture  or  penalty  to  the  State. 

Sec.  4802.  Within  One  Year.  —  1.  An  action  against  a  sheriff  or  other  officer 
for  the  escape  of  a  prisoner  arrested  or  imprisoned  on  civil  process; 

2.  An  action  by  an  heir,  legatee,  creditor,  or  other  party  interested,  against 
an  executor  or  administrator,  for  alleged  misfeasance,  malfeasance,  or  misman- 
agement of  the  estate  within  one  year  from  the  time  of  final  settlement,  or  the 
time  such  alleged  misconduct  was  discovered. 

Sec.  4803.  Special  Provisions  for  Action  on  Penalty. — An  action  upon  a 
statute  for  a  penalty  given  in  whole  or  in  part  to  the  person  who  may  prosecute 
for  the  same  shall  be  commenced  within  three  years  [one year]  after  the  commis- 
sion of  the  offense;  and  if  the  action  be  not  commenced  within  one  year  by  a 
private  party,  it  may  be  commenced  within  two  years  after  the  commission  of 
the  offense  in  behalf  of  the  State  by  the  prosecuting  attorney  of  the  county 
where  said  offense  was  committed. 

Sec.  4804.  Within  Three  Months.  —  2.  Upon  claims  against  an  estate, 
rejected  by  an  executor  or  administrator  within  three  months  after  the  rejection. 

Sec.  4805.  Actions  not  before  specified.  —  An  action  for  relief  not  hereinbe- 
fore provided  for  shall  be  commenced  within  ttvo years  after  the  cause  of  action 
shall  have  accrued. 

Sec.  4806.  Actions  on  Mutual  Open  Accounts.  —  In  action  brought  to  recover 
a  balance  due  upon  a  mutual,  open,  and  current  account,  where  there  have  been 
reciprocal  demands  between  the  parties,  the  cause  of  action  shall  be  deemed  to 
have  accrued  from  the  time  of  the  last  item  proved  in  the  account  on  either  side; 
but  whenever  a  period  of  more  than  one  year  shall  have  elapsed  between  any  of 
a  series  of  items  or  demands,  they  are  not  to  be  deemed  such  an  account. 

Sec.  4818.  Foreign  Statutes,  how  applied. — Where  the  cause  of  action  has 
in  another  State,  Territory,  or  country  between  nonresidents  of  this  State,  and 
arisen  by  the  laws  of  the  State,  Territory,  or  country  where  the  action  arose,  an 
acti3n  cannot  be  maintained  thereon  by  reason  of  the  lapse  of  time,  no  action 
sha'.l  be  maintained  thereon  in  this  State. 

SUPPLEMENTAL  ACTS. 
The  Act  of  1897,  chap.  39,  limits  Judgment  liens  to  six ytars. 


788  STATUTES   OF   LIMITATION. 

WEST  VIRGINIA. 

CODE,  1891.     (Warth's  Compilation.)     Chap.  104. 
Limitation  of  entry  on,  or  action  for  land. 

Sec.  1.  Entry  on  or  Action  for  land.  —  No  person  shall  make  an  entry  on,  or 
bring  an  action  to  recover,  any  land,  but  within  ten  years  next  after  the  time  at 
which  the  right  to  make  such  entry  or  to  bring  such  action  shall  have  first 
accrued  to  himself  or  to  some  person  through  whom  he  claims. 

Sec.  2.  Continual  Claim. —  No  continual  or  other  claim,  upon  or  near  any 
land,  shall  preserve  any  right  of  making  an  entry  or  bringing  an  action. 

Sec.  6.  Personal  Actions.  Limitation  of  Personal  Actions.  —  Every  action  to 
recover  money,  which  is  founded  upon  an  award,  or  on  any  contract  other  than 
a  judgment  or  recognizance,  shall  be  brought  within  the  following  number  of 
years  next  after  the  right  to  bring  the  same  shall  have  first  accrued,  that  is  to 
say:  if  the  case  be  upon  an  indemnifying  bond  taken  under  any  statute,  or 
upon  a  bond  of  an  executor,  administrator,  guardian,  curator,  committee, 
sheriff  or  deputy  sheriff,  clerk  or  deputy  clerk,  or  any  other  fiduciary  or  public 
officer,  within  ten  years;  if  it  be  upon  any  other  contract  by  writing  under  seal, 
executed  before  the  first  day  of  April,  1869,  within  twenty  years;  but  if  executed 
on  or  after  that  day,  wilhin  ten  years;  if  it  be  upon  an  award,  or  upon  a  con- 
tract by  writing,  signed  by  the  party  to  be  charged  thereby,  or  by  his  agent, 
but  not  under  seal,  within  ten  years;  and  if  it  be  upon  any  other  contract,  within 
five  years,  unless  it  be  an  action  by  one  partner  against  his  copartner  for  a 
settlement  of  the  partnership  accounts,  or  upon  accounts  concerning  the  trade 
or  merchandise  between  merchant  and  merchant,  their  factors  or  servants, 
where  the  action  of  account  would  lie,  in  either  of  which  cases  the  action  may 
be  brought  until  the  expiration  of  five  years  from  a  cessation  of  the  dealings  in 
which  they  are  interested  together,  but  not  after.  {As  amended  by  the  Act  of 
1895,  ch.  2.) 

Sec.  7.  Bonds  of  Fiduciaries. 

Sec.  11.  Recognizances  — Every  action  or  scire  facias  upon  a  recognizance 
shall,  if  it  be  not  a  recognizance  of  bail,  be  commenced  within  ten  years  next 
after  the  right  to  bring  the  same  shall  have  fit st  accrued,  and  if  it  be  a  recog- 
nizance of  bail,  within  three  years  after  the  right  to  bring  the  same  shall  have 
first  accrued. 

Sec.  12.  Other  Actions.  —  Every  personal  action  for  which  no  limitation  is 
otherwise  prescribed,  shall  be  brought  within  five  years  next  after  the  right  to 
bring  the  same  shall  have  accrued,  if  it  be  for  a  matter  of  such  nature  that, 
in  case  a  party  die,  it  can  be  brought  by  or  against  his  representative;  and  if  it 
be  for  a  matter  not  of  such  nature,  shall  be  brought  within  one  year  next  after 
the  right  to  bring  the  same  shall  have  accrued. 

Sec.  13.  Foreign  Judgment.  —  Every  action  upon  a  judgment  or  decreei 
rendered  in  any  other  State  or  country,  shall  be  barred,  if  by  the  laws  of  such 
or  county  such  action  would  there  be  barred,  and  the  judgment  or  decree 
be  incapable  of  Ix-jrig  otherwise  enforced  there  and  whether  so  barred  or  not, 
no  action  against  a  person  who  shall  have  resided  in  this  State,  during  the  ten 
years  next  preceding  such  action,  shall  be  brought  upon  any  such  judgment  or 
decree,  rendered  more  than  ten  years  before  the  commencement  of  such  action. 


WISCONSIN.  789 

Sec.  14.  Suits  to  Avoid  Gifts.  —  No  gift,  conveyance,  assignment,  transfer,  or 
charge,  which  is  not  on  consideration  deemed  valuable  in  law,  shall  he  avoided, 
either  in  whole  or  in  part,  for  that  cause  only,  unless,  within  five  years  after  it 
is  made,  suit  be  brought  for  that  purpose,  or  the  subject  thereof,  or  some  part 
of  it,  be  distrained  or  levied  upon  by  or  at  the  suit  of  a  creditor,  as  to  whom 
such  gift,  conveyance,  assignment,  transfer,  or  charge  is  declared  to  be  void  by 
the  second  section  of  the  seventy-fourth  chapter  of  this  Code. 

Sec.  15.  Repeal  of  Grants.  —  A  bill  in  equity  to  repeal,  in  whole  or  in  part, 
any  grant  of  land  by  this  State  or  of  the  State  of  Virginia,  shall  be  brought 
within  ten  years  next  after  the  date  of  such  grant,  and  not  after. 

Sec.  18.  Prosecution  prevented.  Lex  Loci. — Where  any  such  right  as  is 
mentioned  in  this  chapter  shall  accrue  against  a  person  who  had  before  resided 
in  this  State,  if  such  person  shall,  by  departing  without  the  same,  or  by 
absconding  or  concealing  himself,  or  by  any  other  indirect  ways  or  means, 
obstruct  the  prosecution  of  such  right,  or  if  such  right  has  been  or  shall  be 
hereafter  obstrucled  by  war,  insurrection,  or  rebellion,  the  time  that  such 
obstruction  may  have  continued  shall  not  be  computed  as  any  part  of  the  time 
within  which  the  said  right  might  or  ought  to  have  been  prosecuted.  But  if 
another  person  be  jointly  or  severally  liable  with  the  person  so  obstructing  the 
prosecution  of  such  right,  and  no  such  obstruction  exists  as  to  him,  the  excep- 
tion contained  in  this  section  as  to  the  person  so  absconding  shall  not  apply  to 
him  in  any  action  or  suit  brought  against  him  to  enforce  such  liability.  And 
upon  a  contract  which  was  made  and  was  to  be  performed  in  another  State  or 
country,  by  a  person  who  then  resided  therein,  no  action  shall  be  maintained, 
after  the  right  of  action  thereon  is  barred  by  the  laws  of  said  State  or  country. 

Chap.  37.  Sec.  5,  limits  a  Suit  against  the  State  to  five  years  from  the  time  the 
cliiin  might  have  been  presented;  but  in  cases  of  legal  disability,  to  two  years 
after  the  removal  thereof. 

Chap.  50,  Sec.  211,  limit?  an  Action  for  Forcible  Entry  and  Detainer  to  two 
years  after  the  cause  of  action  accrues. 

Chap.  03,  Sec.  10,  limits  a  Distress  for  Rent  "within  one  year  after  the  time  it 
becomes  due,  whether  the  lease  be  ended  or  not." 

By  Acts  of  1872-3,  chap.  61,  sec.  1  (Comp.  1891,  p.  1045),  an  action  to  recover 
possession  of  lease  of  Oil  and  Mineral  Lands,  or  the  profits,  against  a  lessee  in 
continuous  possession,  expending  in  good  faith,  etc.,  is  limited  to  three  years. 


WISCONSIN. 

STATUTES,  1898.     Chap.  177. 
(Sanborn  and  Berryman's  Compilation.) 

Sec.  4207.  Relating  to  Real  Property.  —  No  action  for  the  recovery  of  real 
property,  or  the  possession  thereof,  shall  be  maintained,  unless  it  appear  that 
the  plaintiff,  his  ancestor,  predecessor  or  grantor,  was  seised  or  possessed  of 
the  premises  in  question  within  twenty  years  oefore  the  commencement  of  such 
action. 

Sec.  4208.  Defence  not  to  be  made  unless  Seisin  within  Twenty  Years.  —  No 
defense  or  counterclaim,  founded  upon  the  title  to  real  property,  or  to  rents  or 


ygO  STATUTES    OF    LIMITATION. 

services  out  of  the  same,  shall  be  effectual,  unless  the  person  making  it,  or 
under  whose  tiile  it  is  made,  or  his  ancestor,  predecessor  or  grantor,  was  seised 
or  possessed  of  the  premises  in  question  within  twenty  years  before  the  com- 
mitting of  the  act  with  respect  to  which  it  is  made. 

Sec.  4209  Entry  not  valid,  unless.  —  No  entry  upon  real  estale  shall  be 
deemed  sufficient  or  valid,  as  a  claim,  unless  an  action  be  commenced  thereupon 
within  one  year  after  the  making  of  such  entry  and  within  twenty  years  from 
the  time  when  the  right  to  make  such  entry  descended  or  accrued;  and  when 
held  adversely  under  the  provisions  of  section  4212,  within  ten  years  from  the 
time  when  such  adverse  possession  began. 

Sec.  4210.  Possession  presumed,  when.  —  In  every  action  to  recover  real  prop- 
erty, or  the  possession  thereof,  the  person  establishing  a  legal  title  to  the 
premises  shall  be  presumed  to  have  been  possessed  thereof  within  the  time 
required  by  law;  and  the  occupation  of  such  premises  by  any  other  person  shall 
be  deemed  to  have  been  under  and  in  subordination  to  the  legal  title,  unless  it 
appear  that  such  premises  have  been  held  and  possessed  adversely  to  such  legal 
title  for  ten  years  under  the  provisions  of  the  next  section,  or  twenty  years  under 
the  provisions  of  section  4213,  before  the  commencement  of  such  action. 

Sec.  4211-4215.  Adverse  Possession. 

Sec.  4219.  The  following  actions  must  be  commenced  within  the  periods 
respectively  hereinafter  prescribed,  after  the  cause  of  action  has  accrued:  — 

Sec.  4220.  Within  Twenty  Years.  —  1.  An  action  upon  a  judgment  or  decree 
of  any  court  of  record  of  this  State  or  of  the  United  States  sitting  within  this 
State. 

2.  An  action  upon  a  sealed  instrument  when  the  cause  of  action  accrues 
within  this  State,  except  those  menticned  in  sections  984,  3968,  and  4222. 

Sec.  4221.  Within  Ten  Years.  —  1.  An  action  upon  a  judgment  or  decree  of 
any  court  of  record  of  any  other  State  or  Territory  of  the  United  States  or  of 
any  court  of  the  United  States  sitting  without  this  State. 

2.  An  action  upon  a  sealed  instrument  when  the  cause  of  action  accrued 
without  this  State,  except  those  mentioned  in  the  next  section. 

3.  An  action  for  the  recovery  of  damages  for  flowing  lands,  when  such  lands 
have  been  flowed  by  reason  of  the  construction  or  maintenance  of  any  mill-dam. 

4.  An  action  which,  on  and  before  February  28,  1857,  was  cognizable  by  the 
Court  of  Chancery,  when  no  other  limitation  is  prescribed  in  this  chapter. 

Sec.  4222.  Within  Six  Years.  —  1.  An  action  upon  a  judgment  of  a  court  not 
of  record. 

2.  An  action  upon  any  bond,  coupon,  interest-warrant,  or  other  contract  for 
the  pavment  of  money,  whether  sealed  or  otherwise,  made  or  issued  by  any 
town,  county,  city,  village,  or  school  district  in  this  State. 

3.  An  action  upon  any  other  contract,  obligation,  or  liability,  express  or 
implied,  except  those  mentioned  in  the  last  two  preceding  sections. 

4.  An  action  upon  a  liability  created  by  statute,  other  than  a  penalty  or  for- 
feiture, when  a  different  limitation  is  not  prescribed  by  law. 

5.  An  action  to  recover  damages  for  an  injury  to  property,  real  or  personal, 
or  f',r  an  injury  to  the  person,  character  or  rights  of  another,  not  arising  on 
contract,  except  in  case  where  a  different  period  is  expressly  prescribed  (also  as 
to  foreign  limitation,  and  notice  within  one  year  of  the  injury). 

6  \n  a<  tion  to  recover  personal  property  or  damages  for  the  wrongful  taking 
<.r  -I   tendon  thereof. 


WISCONSIN.  791 

7.  An  action  for  relief  on  the  ground  of  fraud,  in  a  case  which  was,  on  and 
before  February  28,  1857,  solely  cognizable  oy  the  Court  of  Chancery.  The 
cause  of  action  in  such  case  is  not  deemed  to  have  accrued  until  the  discovery 
by  the  aggrieved  party  of  the  facts  constituting  the  fraud. 

Sec.  4223.  Within  Three  Years.  —  An  action  against  a  sheriff,  coroner,  town- 
clerk  or  constable  upon  a  liability  incurred  by  the  doing  of  an  act  in  his  official 
capacity  and  in  virtue  of  his  office  or  by  the  omission  of  an  official  duty,  includ- 
ing the  non-payment  of  money  collected  upon  execution.  But  this  section  shall 
not  apply  to  an  action  for  an  escape. 

Sec.  4224.  Within  Two  Years.  —  1.  An  action  upon  a  statute  penalty  or  for- 
feiture when  the  action  is  given  to  the  party  prosecuting  therefor  and  the  State, 
or  to  the  State  alone,  except  where  the  statute  imposing  it  provides  a  different 
limitation. 

2.  An  action  to  recover  damages  for  libel,  slander,  assault,  battery,  or  false 
imprisonment. 

3.  An  action  brought  by  the  personal  representatives  of  a  deceased  person  to 
recover  damages,  when  the  death  of  such  person  was  caused  by  the  wrongful 
act,  neglect,  or  default  of  another. 

4.  An  action  to  recover  a  forfeiture  or  penalty  imposed  by  any  by-law,  ordi- 
nance or  regulation  of  any  town,  county,  city  or  village  or  of  any  corporation 
organized  under  the  laws  of  this  State,  when  no  other  limitation  is  prescribed 
by  law. 

Sec.  4225.  Within  One  Year.  —  An  action  against  a  sheriff  or  other  officer,  for 
the  escape  of  a  prisoner  arrested  or  imprisoned  on  civil  process.  . 

Sec.  4226.  Accounts. —  In  actions  brought  to  recover  the  balance  due  upon  a 
mutual  and  open  account  current  the  cause  of  action  shall  be  deemed  to  have 
accrued  at  the  time  of  the  last  item  proved  in  such  account. 

Sec.  4227.  Other  Personal  Actions,  within  Ten  Years.  —  All  personal  actions 
on  any  contract  not  limited  by  this  chapter,  or  any  other  law  of  this  State,  shall 
be  brought  within  ten  years  after  the  accruing  of  the  cause  of  action. 

Sec.  4228.  Statute  applied  to  Defences,  &c.  —  A  cause  of  action  upon  which 
an  action  cannot  be  maintained,  as  prescribed  in  this  chapter,  cannot  be  effectu- 
ally interposed  as  a  defense,  counterclaim,  or  set-off. 

Sec.  4250.  Where  Answer  or  Counterclaim  is  interposed  and  Suit  is  dismissed 
or  discontinued.  —  When  a  defendant  in  an  action  has  interposed  an  answer,  as 
a  defense,  set-off  or  counterclaim  upon  which  he  would  be  entitled  to  rely  in 
such  action,  the  remedy  upon  which,  at  the  time  of  the  commencement  of  such 
action,  was  not  barred  by  law,  and  such  complaint  is  dismissed  or  the  action  is 
discontinued,  the  time  which  intervened  between  the  commencement  and  the 
termination  of  such  action  shall  not  be  deemed  a  part  of  the  time  limited  for 
the  commencement  of  an  action  by  the  defendant  to  recover  for  the  cause  of 
action  so  interposed  as  a  defense,  set-off  or  counterclaim. 

Sec.  4251.  Time  extended,  when.  —  There  being  no  person  in  existence  who 
is  authorized  to  bring  an  action  thereon  at  the  time  a  cause  of  action  accrues, 
shall  not  extend  the  time  within  which,  according  to  the  provisions  of  this 
chapter,  an  action  can  be  commenced  upon  such  cause  of  action,  to  more  than 
double  the  period  otherwise  prescribed  by  law. 


792  STATUTES   OF   LIMITATION. 

WYOMING. 

REVISED  STATUTES,  1899.     Div.  3,  Title  4. 
Chap.   2.      Time  of  commencing  Actions  —  In   General. 

Sec.  3447.  Causes  of  Action  that  survive.  —  In  addition  to  the  causes  of  action 
which  survive  at  common  law,  causes  of  action  for  mesne  profits  or  for  an 
injury  to  real  or  personal  estate,  or  for  any  deceit  or  fraud,  shall  also  survive; 
and  the  action  may  be  brought  notwithstanding  the  death  of  the  person  entitled 
or  liable  to  the  same. 

Sec.  344S.  Actions  for  causing  Death  which  survive.  —  Whenever  the  death 
of  a  person  shall  be  caused  by  wrongful  act,  neglect  or  default,  and  the  act, 
neglect  or  default  is  such  as  would  (if  death  had  not  ensued)  have  entitled  the 
party  injured  to  maintain  an  action  to  recover  damages  in  respect  thereof;  then, 
and  in  every  such  case,  the  person  who,  or  the  corporation  which,  would  have 
been  liable  if  death  had  not  ensued,  shall  be  liable  to  an  action  for  damages, 
notwithstanding  the  death  of  the  person  injured,  and  although  the  death  shall 
have  been  caused  under  such  circumstances  as  amount  in  law  to  murder  in  the 
first  or  second  degree,  or  manslaughter. 

Actions  concerning  Real  Property. 

Sec.  3451.  Recovery  of  Lands,  &c,  Ten  Years.  —  An  action  for  the  recovery 
of  the  title  or  possession  of  lands,  tenements  or  hereditaments,  can  only  be 
brought  within  ten  years  after  the  cause  of  such  action  action  accrues. 

Sec.  3452.  Saving  to  Persons  under  Disability.  —  A  person  entitled  to  bring 
an  action  for  the  recovery  of  real  property,  who  may  be  under  any  legal  disa- 
bility when  the  cause  of  action  accrues,  may  bring  his  action  within  ten  years 
after  the  disability  is  removed. 

Other  Actions. 

Sec.  3453.  Civil  Actions.  —  Civil  actions  other  than  for  the  recovery  of  real 
property  can  only  be  brought  within  the  following  periods,  after  the  cause  of 
action  accrues. 

Sec.  3454.  Five  Years.  —  An  action  upon  a  specialty  or  any  agreement,  con- 
tract or  promise  in  writing,  and  on  all  foreign  claims,  judgments  or  contracts, 
express  or  implied,  contracted  or  incurred  before  the  debtor  becomes  a  resident 
of  this  State,  actions  shall  be  commenced  within  two  years  after  the  debtor  shall 
have  established  his  residence  in  this  State. 

Sec.  3455.  Eight  Years.  —  An  action  upon  a  contract  not  in  writing,  either 
express  or  implied;  an  action  upon  a  liability  created  by  statute  other  than  a 
forfeiture  or  penalty. 

Sec.  3456.  Four  Years.  —  An  action  for  trespass  upon  real  property;  an  action 
for  the  recovery  of  personal  property,  or  for  taking,  detaining  or  injuring  the 
same,  but  in  an  action  for  the  wrongful  taking  of  personal  property  the  cause 
of  action  shall  not  be  deemed  to  have  accrued  until  the  wrongdoer  is  discovered; 
an  action  for  an  injury  to  the  rights  of  the  plaintiff  not  arising  on  contract,  not 
hereinafter  enumerated;  an  action  for  relief  on  the  ground  of  fraud;  but  the 
cause  of  action  in  such  case  shall  not  be  deemed  to  have  accrued  until  the  dis- 
covery of  the  fraud. 


WYOMING.  793 

Sec.  3457.  One  Tear.  —  An  action  for  libel,  slander,  assault,  battery,  malicious 
prosecution  or  false  imprisonment;  an  action  upon  a  statute  for  a  penalty 
or  forfeiture;  but  where  a  different  limitation  is  prescribed  in  the  statute,  by 
which  the  remedy  is  given,  the  action  may  be  brought  within  the  period  so 
limited. 

Sec.  3458.  Ten  Tears.  —  An  action  upon  the  official  bond  or  undertaking  of 
an  officer,  assignee,  trustee,  executor,  administrator,  or  guardian,  or  upon  a 
bond  or  undertaking  given  in  pursuance  of  a  statute  can  only  be  brought 
within  ten  years  after  the  cause  of  action  accrues;  but  this  section  shall  be  sub- 
ject to  the  qualification  in  section  3450. 

Sec.  3459.  General  Provision.  —  An  action  for  relief,  not  hereinbefore  pro- 
vided for,  can  only  be  brought  within  ten  years  after  the  cause  of  action  accrues. 

Sec.  3464.  Lex  Loci.  —  If  by  the  laws  of  the  State  or  country  where  the 
cause  of  action  arose  the  action  is  barred,  it  is  also  barred  in  this  State* 


794  STATUTES   OF   LIMITATION 


ENGLISH  STATUTES  OF  LIMITATION. 

(Vol.  6  of  Chitty's  Statutes,  Lely's  edition  (1895),  with  notes  of  decisions, 
should  be  consulted  on  these  statutes.) 

The  Act  31  Eliz  ,  ch.  5,  limited  suits  upon  penal  statutes  to  two  years  for  actions 
by  the  crown,  and  one  year  by  other  parties. 

The  Limitation  Act,  1623  (21  Jac,  ch.  16.) 

Sec.  3.  All  actions  of  trespass  quare  clausum  /regit,  all  actions  of  trespass, 
detinue,  action,  sur  trover,  and  replevin  for  taking  away  of  goods  and  cattle, 
all  actions  of  account,  and  upon  the  case,  other  than  such  accounts  as  concern 
the  trade  of  merchandise  between  merchant  and  merchant,  their  factors  or 
servants,  all  actions  of  debt  grounded  upon  any  lending  or  contract  without 
specialty;  all  actions  of  debt  for  arrearages  of  rent,  and  all  actions  of  assault, 
menace,  battery,  wounding,  and  imprisonment,  or  any  of  them,  which  shall  be 
sued  or  brought  at  any  time  after  the  end  of  this  present  session  of  Parliament, 
shall  be  commenced  and  sued  within  the  time  and  limitation  hereafter 
expressed,  and  not  after;  (that  is  to  say)  (2)  the  said  actions  upon  the  case 
(other  than  for  slander),  and  the  said  actions  for  account,  and  the  said  actions 
for  trespass,  debt,  detinue,  and  replevin  for  goods  or  cattle,  and  the  said  action 
of  trespass  quare  clausum  /regit,  within  three  years  next  after  the  end  of  this 
present  session  of  Parliament,  or  within  six  years  next  after  the  cause  of  such 
actions  or  suit,  and  not  after;  (3)  and  the  said  actions  of  trespass,  of  assault, 
battery,  wounding,  imprisonment,  or  any  of  them,  within  one  year  next  after 
the  end  of  this  present  session  of  Parliament,  or  within  four  years  next  after 
the  cause  of  such  actions  or  suit,  and  not  after;  (4)  and  the  said  action  upon  the 
case  for  words,  within  one  year  after  the  end  of  this  present  session  of  Parlia- 
ment, or  within  two  years  next  after  the  words  spoken,  and  not  after. 


4  Anne,  c.  16  {Seamen's  Wages)  §§  17,  18,  and  19  {A.  D.  1705). 

17.  All  suits  and  actions  in  the  Court  of  Admiralty  for  seamen's  wages, 
which  shall  become  due  after  the  said  first  day  of  Trinity  term,  shall  be  com- 
menced and  sued  within  six  years  next  after  the  cause  of  such  suits  or  actions 
shall  accrue,  and  not  afterwards. 

18.  Provided,  nevertheless,  and  be  it  enacted,  that  if  any  person  or  person? 
ivh'i  is,  or  shall  be,  entitled  lo  any  such  suit  or  action  for  seamen's  wages  bev 

11  l>e,  at  the  time  of   any  such  cause  of   suit  of  action,  accrued,  fallen,  or 

within    the    age    of    twenty-one    years,   /erne    covert,    non    compos  mentis, 

imprisoned,  or  beyond  the  seas,  that  then  such  person  or  persons  shall  be  set  at 

liberiv  to  bring  the  same  actions,  so  as  they   take  the  same  within  six   years 


ENGLISH    STATUTES   OF    LIMITATION.  795 

next  after  their  coming  to,  or  being  of  full  age,  discovert,  of  sane  memory,  at 
Jarge,  and  returned  from  beyond  the  seas. 

19.  If  any  person  or  persons  against  whom  there  is  or  shall  be  any  such  cause 
of  suit  or  action  for  seamen's  wages,  or  against  whom  there  shall  be  any  cause 
of  action  of  trespass,  detinue,  actions  for  trover  or  replevin,  for  taking  away 
goods  or  cattle,  or  of  action  of  account,  or  upon  the  case,  or  of  debt  grounded 
upon  any  lending  or  confact  without  specialty,  of  debt  for  arrearages  of  rent, 
or  assault,  menace,  battery,  wounding,  and  imprisonment,  or  any  of  them,  be, 
or  shall  be,  at  the  time  of  any  such  cause  of  suit  or  action  given  or  accrued, 
fallen,  or  come  beyond  the  seas,  that  then  such  person  or  persons,  who  is,  or 
shall  be,  entitled  to  any  such  suit  or  action,  shall  be  at  liberty  to  bring  the  said 
actions  against  such  person  and  persons  after  their  return  from  beyond  the 
seas,  so  as  they  take  the  same  after  their  return  from  beyond  the  seas  within 
such  times  as  are  respectively  limited  for  the  bringing  of  the  said  actions  before 
by  this  act,  and  by  the  said  other  act  made  in  the  one-and-twentieth  year  of  the 
reign  of  King  James  the  First. 


9  Geo.  III.,  c.  16*  (  "  Nullum  Tempus  Act,"  A.  D.  1768). 

By  the  first  section  of  this  act  the  crown  is  disabled  to  sue  or  implead  any 
person  for  any  manors,  lands,  tenements,  rents,  tithes,  or  hereditaments  where 
the  right  had  not,  or  shall  not  first  accrue  and  grow  within  sixty  years  next 
before  commencing  suit,  unless  the  same  shall  have  been  duly  in  charge,  or 
stood  insuper  of  record,  or  been  answered  to  the  crown.  The  second  section 
provides  for  cases  where  the  rent  and  profits  of  such  hereditaments  shall  be 
duly  in  charge  to  the  crown.  The  third  and  fourth  sections  provide  for  and 
exempt  from  the  operation  of  the  act  reversions  in  the  crown  and  grantees  of 
the  crown.  The  fifth  and  sixth  sections  provide  for  payment  of  certain  services 
to  the  crown,  and  contain  a  general  reservation  of  the  rights  of  others  than  the 
crown.  The  seventh  section  secures  to  the  crown  such  fee  farm  or  other  rents 
as  had  been  paid  within  a  limited  time.  The  eighth  and  ninth  sections  contain 
temporary  provisions.  The  tenth  section  declares  what  shall  and  shall  not  be 
deemed  a  putting  in  charge,  standing  insuper  or  taking  or  answering  by  or  to 
the  crown  within  the  meaning  of  the  first  section. 


9  Geo.  IV.,  c.  14  {"Lord  Tenterderi 's  Act"),  %%  1.  2,  3,  4,  and 8'  {May  9,  1828.) 

1.  Whereas  by  an  act  passed  in  England  in  the  twenty-first  year  of  the  reign 
of  King  James  the  First,  it  was  among  other  things  enacted  that  all  actions  of 
account  and  upon  the  case  other  than  such  accounts  as  concern  the  trade  of 
merchandise  between  merchant  and  merchant,  their  factors  or  servants,  all 
actions  of  debt  grounded  upon  any  lending  or  contract  without  specialty,  and 
all  actions  of  debt  for  arrearages  of  rent,  should  be  commenced  within  three 
years  after  the  then  present  session  of  Parliament,  or  within  six  years  next 
after  the  cause  of  such   action   or  suit  and  not  after;  and   whereas,  a  similar 

'■  Extended  to  the  Duchy  of  Cornwall  by  23  &  24  Vict.  c.  53,  infra,  p.  650;  and  see  24  &  25  Vict. 
•C.  62,  infra,  p.  650. 

2  See  ig  &  20  Vict.,  c.  97,  §  13,  infra,  p.  649. 


796  STATUTES   OF   LIMITATION. 

enactment  is  contained  in  an  act  passed  in  Ireland  in  the  tenth  year  of  the 
reign  of  King  Charles  the  First;  and  whereas,  various  questions  have  arisen  in 
actions  founded  on  simple  contract  as  to  the  proof  and  effect  of  acknowledg- 
ments and  promises  offered  in  evidence  for  the  purpose  of  taking  cases  out  of 
the  operation  of  the  said  enactments;  and  it  is  expedient  to  prevent  such  ques- 
tions and  to  make  provision  for  giving  effect  to  the  said  enactments  and  to  the 
intention  thereof:  Be  it  therefore  enacted,  by  the  King's  most  excellent  Majesty, 
by  and  with  the  advice  and  consent  of  the  lords  spiritual  and  temporal  and 
commons  in  the  present  Parliament  assembled,  and  by  the  authority  of  the 
same,  that  in  actions  of  debt  or  upon  the  case  grounded  upon  any  simple  con- 
tract, no  acknowledgment  or  promise  by  words  only  shall  be  deemed  sufficient 
evidence  of  a  new  or  continuing  contract  whereby  to  take  any  case  out  of  the 
operation  of  the  said  enactments  or  either  of  them,  or  to  deprive  any  party  of 
the  benefit  thereof  unless  such  acknowledgment  or  promise  shall  be  made,  or 
contained  by  or  in  some  writing  to  be  signed  by  the  party  chargeable  thereby; 
and  that  where  there  shall  be  two  or  more  joint  contractors  or  executors,  or 
administrators  of  any  contractor,  no  such  joint  contractor,  executor,  or  adminis- 
trator shall  lose  the  benefit  of  the  said  enactments  or  either  of  them,  so  as  to  be 
chargeable  in  respect  or  by  reason  only  of  any  written  acknowledgment  or 
promise  made  and  signed  by  any  other  or  others  of  them:  Provided  always, 
that  nothing  herein  contained  shall  alter  or  take  away  or  lessen  the  effect  of  any 
payment  of  any  principal  or  interest  made  by  any  person  whatsoever:  Provided 
also  that  in  actions  to  be  commenced  against  two  or  more  such  oint  contractors 
or  executors  or  administrators,  if  it  shall  appear  at  the  trial  or  otherwise  that 
the  plaintiff,  though  barred  by  either  of  the  said  recited  acts  or  this  act,  as  to 
one  or  more  of  such  joint  contractors  or  executors  or  administrators,  shall 
nevertheless  be  entitled  to  recover  against  any  other  or  others  of  the  defendants 
by  virtue  of  a  new  acknowledgment  or  promise,  or  otherwise  judgment  may  be 
given  and  costs  allowed  for  the  plaintiff  as  to  such  defendant  or  defendants 
against  whom  he  shall  recover,  and  for  the  other  defendant  or  defendants 
against  the  plaintiff. 

2.  If  any  defendant  or  defendants,  in  any  action  on  any  simple  contract,  shall 
plead  any  matter  in  abatement  to  the  effect  that  any  other  person  or  persons 
ought  to  be  jointly  sued  and  issue  be  joined  on  such  plea,  and  it  shall  appear 
at  the  trial  that  the  action  could  not  by  reason  of  the  said  recited  acts,  or  this 
act,  or  either  of  them,  be  maintained  against  the  other  person  or  persons  named 
in  such  plea  or  any  of  them,  the  issue  joined  on  such  plea  shall  be  found 
against  the  party  pleading  the  same. 

3.  No  indorsement  or  memorandum  of  any  payment  written  or  made,  after 
the  time  appointed  for  this  act  to  take  effect,  upon  any  promissory  note,  bill  of 
exchange  or  other  writing,  by  or  on  the  behalf  of  the  party  to  whom  such  pay- 
ment shall  be  made,  shall  be  deemed  sufficient  proof  of  such  payment  so  as  to 
take  the  case  out  of  the  operation  of  either  of  the  said  statutes. 

4.  The  said  recited  acts  and  this  act  shall  be  deemed  and  taken  lo  apply  to 
the  case  of  any  debt  or  simple  contract  alleged  by  way  of  set-off  on  the  part  of 
any  defendant  either  by  plea,  notice,  or  otherwise. 

8.  No  memorandum  or  other  writing  made  necessary  by  this  act  shall  be 
deemed  lo  be  an  agreement  within  the  meaning  of  any  statute  relating  to  the 
duti'-'-.  of  stamps. 

<).    Nothing  in  this  act  contained  shall  extend  to  Scotland. 


Sec. 

I. 

Sec. 

2. 

Sec. 

3- 

Sec. 

4- 

Sec. 

5- 

Sec. 

6. 

Sec. 

7- 

Sec. 

8. 

Sec. 

9- 

ENGLISH    STATUTES   OF    LIMITATION.  797 

3  &  4  Wm.  IV.,  c.  27  '  ("  Real  Property,  Limitation  Act,  1833  "). 

This  Act,  which  is  lengthy  and  important  chiefly  in  England,  may  be  thus 
outlined: 

Interpretation. 

(Repealed  by  37  and  38  Vict.,  c.  57    §§  1,  q,, 

When  right  of  action  for  rent,  etc.,  accrues. 

Remaindermen. 

(Repealed  by  37  and  38  Vict.,  c.  57,  §§  2,  9.) 
6.  Administrator. 

Tenant  at  will. 

Tenant  from  year  to  year. 

Tenant  by  lease  in  writing. 
Sec.  10.  Mere  entry  is  not  possession. 
Sec.  n.   No  righl  by  continual  claim. 
Sec.  12.   Coparceners. 
Sec.  13.   Brother,  etc.,  of  heir. 

Sec.  14.   Written  acknowledgment  equivalent  to  possession. 
Sec.  15.  (Spent.) 

Sees.  16,  17.  (Repealed  by  Real  Property  Limitation  Act,  1874,  §§  3~5.  9-) 
Sec.  18.   Succession  of  disabilities. 
Sec.  19.  (What  is  deemed  "  beyond  seas.") 
Sees.  20-22.   Future  estates  and  tenancies  in  tail. 
Sec.  23.  (Repealed  by  Real  Property  Limitation  Act,  1874.,  §§  6,  9.) 
Sec.  24.  Suits  in  equity. 
Sec.  25.   Express  trusts. 

Sees.  26,  27.   Concealed  fraud  to  prevent  time  from  running. 
Sec.  28.   (Repealed  by  Real  Property  Limitation  Act,  1874,  §§  7,  9.) 
Sec.  29.   Limit  of  action  for  land,  etc.,  by  ecclesiastical  corporation  sale,  two 
incumbencies  and  six  years,  or  sixty  years. 

Sec.  30.   For  advowson,  three  incumbencies,  or  sixty  vears. 
Sees.  31,  32.   Incumbencies  and  advowsons. 
Sec.  33.  For  advowsons,  one  hundred  years. 
Sec.  34.   Extinction  of  right  at  end  of  period  for  action. 
Sec.  35.   Receipt  of  rent  deemed  receipt  of  profits. 
Sec.  36.  (Abolition  of  real  and  mixed  actions,  except  ejectment.) 
Sees.  37,  38.  (Repealed  by  Stat.  Law  Rev.  Act,  1874,  §  1. 

Sec.  39.  No  descent  cast,  discontinuance,  or  warranty  which  may  happen  or 
be  made  (after  Dec.  31,  1833),  shall  toll  or  defeat  any  right  of  entry  or  action  for 
the  recovery  of  land. 

Sec.  40.  (Repealed  by  Real  Property  Limitation  Act,  1874,  §S  8,  9.) 
Sec.  41.   Limit  of  actions  for  arrears  of  dower,  six  years. 
Sec.  42.   For  arrears  of  rent,  or  legacv,  six  years. 
Sec.  44.  This  Act  does  not  extend  to  Scotland. 

1  See  37  &  38  Vict.  C.  57,  §§  1,  9,  infra,  p.  — . 


798  STATUTES   OF   LIMITATION. 

3  &  4  Wm.  IV.,  c.  42 '  {Specialties),  §§  3-7  {August  14,  1833). 

This  Act,  which  was  extended  to  Ireland  by  6  and  7  Vict.,  c.  54,  may  be  thus 
outlined: 

Sec.  3.  Limit  for  action  for  rent,  on  covenant,  or  on  bond  or  other  specialty, 
twenty  years;  on  award,  where  submission  is  not  by  penalty,  or  for  fine  or  copy- 
right, six  years;  for  action  on  statute  by  party  aggrieved,  two  years. 

Sec.  4.   Party  under  disability. 

Sec.  5.  Acknowledgment  in  writing  or  part  payment. 

Sec.  6.  Judgment  reversed. 


7.  Wm.  IV.  &  1  Vict.,  c.  28  {Mortgages,  July  3,  1837). 

It  shall  and  may  be  lawful  for  any  person  entitled  to,  or  claiming  under  any 
mortgage  of  land  within  the  definition  contained  in  the  first  section  of  the  said 
act  (3  and  4  Wm.  IV.,  c.  27),  to  make  an  entry,  or  bring  an  action  at  law  or  suit 
in  equity  to  recover  such  land  at  any  time  within  twenty  years  next  after  the 
last  payment  of  any  part  of  principal  money  or  interest  secured  by  such  mort- 
gage, although  more  than  twenty  years  may  have  elapsed  since  the  time  at 
which  the  right  to  make  such  entry,  or  bring  such  action  or  suit  in  equity,  shall 
have  first  accrued,  anything  in  the  said  act  notwithstanding. 


See  16  &  17  Vict.,  c.  113  (C.  L.  P.  Amendment  Act,  Ireland),  §g  20-27. 

Mercantile  Law  Amendment  Act  (19  &  20  Vict.,  c.  97),  §§  9-16  {July  29,  1856). 

Sec.    9.   Limits  actions  on  merchants'  accounts  to  six  years. 

Sec.  10.  Absence  beyond  seas  is  not  a  disability. 

Sec.  ir.  Joint  debtors. 

Sec.  12.  What  is  "  beyond  seas." 

Sec.  13.  Acknowledgment  by  agent. 

Sec.  14.  Joint  contractors. 


23  &  24  Vict.,  c.  38  (Intestate's  Estate),  §  13,  {July,  23,  i860). 

13.  This  section,  after  reciting  the  3  and  4  Wm.  IV.,  c.  27,  p  40,  enacts  that 
after  the  thirty-first  day  of  December,  i860,  no  suit  or  other  proceeding  shall  be 
brought  to  recover  the  personal  estate  of  any  person  dying  intestate,  but  within 
twenty  years  next  after  a  present  right  to  receive  the  same  shall  have  accrued 
to  some  person  capable  of  giving  a  discharge  for  or  release  of  the  same,  unless 
in  the  meantime  some  part  of  such  estate  or  share,  or  some  interest  in  respect 
thereof,  shall  have  been  accounted  for  or  paid,  or  some  acknowledgment  of  the 
right  thereto  shall  have  been  given  in  writing,  signed  by  the  person  accountable 
for  ilie  same,  or  his  agent,  to  the  person  entitled  thereto,  or  his  agent;  and  in 
such  case  no  such  action  or  suit  shall  be  brought  but  within  twenty  years  after 
such  accounting,  payment,  or  acknowledgment,  or  the  last  of  such  accountings, 
payments,  or  acknowledgments,  if  more  than  one  was  made  or  given. 

1  Extended  to  Ireland  by  6  &  7  Vict.  c.  54. 


ENGLISH    STATUTES   OF   LIMITATION.  799 

23  &  24  Vict.,  c.  53  (Duchy  of  Cornwall  Act),  §%  1  and  2. 
By  section  1  of  this  Act  all  the  provisions  of  the  Act  9  Geo.  III.,  c.  16,  as  to 
limitation  of  actions  and  suits,  are  extended  to  the   Duke  of  Cornwall,  subject 
lo  the  provisions  of  certain  previous  Acts  affecting  the  duchy. 


24  &  25  Vict.,  c.  62  (The  Crown  Act,  1861). 

By  section  1  of  this  Act  the  crown  is  not  to  sue  after  sixty  years  by  reason  of 
the  lands  having  been  in  charge  or  stood  insuper  of  record. 

By  section  2  a  similar  provision  is  made  as  to  the  rights  of  the  crown  in 
respect  of  the  Duchy  of  Cornwall. 

By  the  third  section  provision  is  made  as  to  the  effect  of  answering  of  rents 
to  the  crown. 

The  fourth  section  contains  a  reservation  of  reversionary  interests  in  the 
crown  and  Duke  of  Cornwall. 


36  &  37  Vict.,  c.  66  (Supreme  Court  of  Judicature  Act,  1873) 
25.   No  claim  of  a  cestui  que  trust  against  his  trustee  for  any  property  held 
on  an  express    trust,  or  in  respect   to   any   breach  of  such   trust,  shall  be  held 
to  be  barred  by  any  statute  of  limitations. 


37  &  38  Vict.,  c.  57  ("  The  Heal  Property  Limitation  Act,  1874  "). 

This  Act  may  be  thus  outlined: 

Sees.  1,  2.  Limit  for  action  for  land  or  rent,  twelve  years;  or  where  the  person 
entitled  to  a  particular  estate  is  out  of  possession,  six  years. 

Sec.  3.  Allows  an  extension  of  six  years  in  case  of  infancy,  coverture,  or  lunacy. 

Sec.  4.   No  time  allowed  for  absence  beyond  seas 

Sec.  5.   Utmost  allowance  for  infancy,  etc.,  thirty  years. 

Sec.  o.   Tenancy  in  tail. 

Sec.  7.   Limit  for  action  to  redeem  mortgage,  twelve  years. 

Sec.  8.   Limit  for  action  for  money  charged  on  land  or  legacy,  twelve  years. 

Sec.  9.  Repeals  part  of  3  and  4  Wm.  IV.,  c.  27,  and  this  Act  is  to  be  read  as 
one  with  the  residue. 

Sec.  10.  The  time  for  recovering  charges  is  not  to  be  enlarged  by  express 
trusts. 

38  &  39  Vict.,  c.  77  ( The  Supreme  Court  of  Judicature  Act,  1875),  Order  VIII,  §  1. 

1.  No  original  writ  of  summons  shall  be  in  force  for  more  than  twelve 
months  from  the  day  of  the  date  thereof,  including  the  day  of  such  date,  etc. 


See  39  &  40  Vict.,  c.  37  (Nullum   Tempus  (Ireland)  Act,  1876). 
51  &  52  Vict.,  c.  69  ("  The  Trustee  Act,  1888  "). 
Sec.  1.  "  Trustee  "  includes  executor. 
Sees.  1,  8.    Pleading  of  statutes  of  limitation  by  trustees. 


56  &  57  Vict.,  c.  61  ("  Public  Authorities  Protection  Act,  1893  "). 
Sec.  1.   Limitation  of  action  against  persons  acting  under  statute,  etc. 


INDEX. 


[  The  references  are  to  sections, ,] 


A. 

ABSCONDING  DEBTOR.     See  Disabilities. 
ABSENCE.     See  Disabilities. 

of  owner,  does  not  affect  adverse  holding,  256  n. 
ACCEPTOR, 

of  bill  of  exchange,  lien  of,  21,  note. 

quczre,  as  to  right  of  acceptor  of  bill  drawn  by  bankrupt,  21,  note. 
ACCOUNT, 

for  what  it  lies,  24. 

tenants  in  common,  24. 

what  must  be  alleged  in  action  of,  between  co-tenants,  24  n. 

scope  of  action  of,  extended  by  statute  in  some  States,  24. 

assumpsit  lies  in  place  of,  when,  24. 

proceeding  to  reopen,  barred,  5S  n. 

between  partners,  in  equity,  24,  60  n. 

entry  of  credit  on,    within   statutory   period,   disavowed   by   defendant, 
effecl  of,  68  n. 

settlement  of,  and  striking  a  balance,  2ir,  note  3. 

general  payment  on,  when  insufficient  as  an  admission,  70  n. 

entry  of  credit  in,  by  defendant,  effect  of,  97  n. 
ACCRUAL.     See  Cause  of  Action. 
ACKNOWLEDGMENT, 

historical  review  of  law  relating  to,  64,  65. 

of  debt,  rules  relating  to,  64. 

reasons  for  these  judicial  exceptions,  64. 

must  warrant  inference  of  promise,  64. 

must  be  to  the  proper  person,  64. 

must  be  made  with  the  requisite  formalities,  64. 

must  be  distinct  and  unequivocal,  64  n. 

must  not  repel  inference  of  promise,  64  n.,  68. 

the  words  "  it  is  a  just  debt  "  when  sufficient  as,  64  n. 

"  prove  by  A.  that  I  had  the  timber  and  I  will  pay,"  etc.,  64  n. 

to  a  stranger  not  sufficient,  64  and  note. 

fluctuation  in  law  relating  10,  65 

former  theory  relating  lo,  65 

true  theory  on  which  founded,  66,  67. 

present  theory,  68. 

[stats,  of  lim. —  51]  [901] 


802  STATUTES   OF   LIMITATION. 

ACKNOWLEDGMENT—  Continued. 

unqualified,  raises  implied   promise  to  pay,  65  n. 

applies  only  to  assumpsit,  66. 

of  bond,  66. 

conditional,  is  sufficient,  65  n.,  97  n.  (a) 

quality  of,  is  for  court,  but  whelher  made  or  not,  for  jury,  65  n. 

of  tort  does  not  revive  right  of  action,  66  and  n.  (a) 

no  distinction  now  exists  between,  before,  and  after  the  bar  of  the  statute, 
.,  66  n.  (a) 

crucial  test  as  to,  67. 
f  elements  requisite  to  make  efficacious,  68. 

naked,  not  sufficient,  68  n. 

not  to  plead  statute,  statute  runs  on  from  date  of,  68  n. 

need  not  be  entirely  by  words,  68  n. 

payment  of  money  into  court  does  not  amount  to,  68  n. 

of  debt,  but  claim  that  it  is  void,  effect  of,  68  n. 

claim  that  debt  has  been  paid,  when  it  has  not,  effect  of,  68,  70. 

of  debt,  but  claim  that  statute  has  run  on,  effect  of,  68  n. 

what,  sufficient,  68  and  notes. 

must  be  consistent  with   promise,  and  evince  intention  to  pay,  68  n. 

offer  of  compromise  not,  68  n. 

qualified,  effect,  must  be  accepted,  68  n. 

conditional,  subject  to  conditions,  180,  note,  68. 

three  questions  arise  as  to,  68. 

exact  amount  need  not  be  known,  68. 

written,  instances  of  sufficient,  68  n. 

indefinite,  not  sufficient,  68  n. 

general  direction  in  will  does  not  amount  to,  68  n. 

amount  of  debt  need  not  be  known,  68  n. 

that  signature  to  note  is  genuine  and  that  it  was  never  paid,  but  claim 
that  statute  has  run  on,  effect  of,  68  n 

of  existing  debt,  when  sufficient,  68  n. 

hope  to  pay,    is  when,  68  n. 

desire  to  pay,  not,  68  n. 

promise  to  arrange  a  debt  not  sufficient,  6S  n. 

ambiguous,  may  De  sufficient,  when,  68  n. 

whether  relates  to  particular  debt,  for  jury,  68  n. 

essentials  of,  68  n. 

must  be  before  action  is  brought,  68  n. 

before  or  after  statute  has  run,  no  distinction  in  effect  of,  68  n. 

must  relate  to  debt  in  suit,  68  n. 

proof  required,  to  apply  to  a  particular  debt,  6S. 

instances  where  such  proof  was  insufficient,  68. 

presumption  as  to  what  debt  it  relates  to  in  certain  cases,  (>S. 

rule  when  part  of  a  debt  is  barred,  and  part  not,  68  n. 

vague  and  indefinite,  68  n. 

general,  where  there  are  several  debts,  effect  of,  68. 

amount  to  be  settled   by  arbitration,  68  n. 

question  for  jury,  when,  68. 

what  will  rebut  inference  of  promise  to  pay,  69. 


INDEX.  803 

ACKNOWLEDGMENT—  Continued. 
suggestions  which  destroy,  69  n. 
conditional  made  operative,  how,  69  n. 
of  subsisting  liability,  69  n. 

of  sense  of  shame  that  debt  has  not  been  paid,  70  n. 
essential  requisites  of,  and  rules  relating  to,  70  and  notes, 
former  rules,  70. 
bare,  effect  of,  71. 

expressions  of  willingness  to  pay  if  debt  established,  70  n. 
insertion  of  debt  in  schedule  of  insolvency,  or  in  a  will,  71,  79,  85,  92. 
distinction  between  compulsory  and  voluntary,  71. 
accompanied  by  express  or  implied  refusal  to  pay,  effect  of,  6q. 
settling  account  and  striking  balance,  70  n. 

giving  note  of  third  person  as  collateral  security,  effect  of,  70  n. 
rule  in  Louisiana  as  to  proving,  70  n. 

mortgage  made  to  secure  debt,  but  never  delivered,  effect  of,  71. 
written,  not  delivered,  effect  of,  219. 

connecting  conversations  or  letters,  to  show,  72  n.  (a),  85  n.  (<i) 
promise  to  settle  not  sufficient,  72. 
failure  to  deny  liability,  effect  of,  73. 
expressions  of  regret  at  inability  to  pay,  73. 
in  answer  to  bill  in  equity,  or  in  affidavit,  for  leave  to  plead  the  statute, 

73  n- 
conditional,  when  insufficient,  73  n. 
indefinite,  73  n. 

offer  to  mortgage  lands  to  secure  debt,  73  n. 
must  be  made  by  person  competent  to  contract,  73  n. 
effect  of,  74. 

offer  to  pay  in  specific  property,  75,  78. 

offer  to  compromise,  or  to  pay  less  than  is  due,  is  not,  78. 
distinction,  whether  made  before  or  after  statute  has  run,  78,  81. 
by  and  to  whom  must  be  made,  77. 
made  to  agent  of  creditor,  what  must  be  shown,  79. 
inures  to  benefit  of  creditor's  assignee,  79. 

made  in  paper  not  intended  for  the  creditor,  not  sufficient,  79. 
invenlory  of  assets  of  estate,  debt  due  from  executor  in,  79. 
entry  by  person  on  books  of  a  creditor,  of  a  debt  due  from  himself,  79. 
recital  of  debt  in  deeds,  etc.,  So. 
offer  to  arbitrate,  80. 
when  must  be  made,  81. 
action  predicated  on  the  old  debt,  81. 
made  on  Sunday,  effect  of,  81. 
effect  of,  on  specialties,  176. 

by  executor  or  administrator,  effect  of,  190-192. 
or  new  promise  by  mortgagor,  effect  of  upon  mortgage,  230. 
when  rights  of  third  persons,  claiming   through  him,  intervene,  230. 
by  mortgagee  of  mortgagor's  rights,  235. 
by  parol,  effect  of,  235  n. 

of  owner's  title  breaks  continuity  of  adverse  possession,  when,  270. 
parol,  when  sufficient,  270. 


804  STATUTES   OF   LIMITATION. 

ACKNOWLEDGMENT—  Continued. 

how  and  by  what  may  be  shown,  270. 

recognition  of  owner's  title,  effect  of,  270. 

by  part  payment,  effect  of,  6S  n,  96-116. 

See  Part  Payment;  New  Promises. 
ACKNOWLEDGMENT  IN  WRITING, 

when  sufficient,  84,  85. 

amount  need  not  be  known  or  stated,  68,  86  n.,  SS. 

essentials  of,  S6-89. 

mortgage  made  to  secure  debt,  but  never  delivered,  is  not,  71. 

writing  found  among  debtor's  papers  after  his  death  is  not,  71 
See  Acknowledgments. 

effect  of  statutes  requiring,  82-84. 

what,  sufficient,  85,  89. 

must  clearly  refer  to  debt  in  suit,  68,  86. 

distinction  between  absolute  and  qualified,  87. 

must  be  definite,  88. 

must  be  delivered  to  the  creditor,  71,  85. 

may  be  shown  by  parol,  68,  87. 

direction  in  will  to  pay,  90. 

debts  due  from  corporations,  who  m-ay  make,  91. 

entry  of  debt  in  schedule,  deeds,  etc.,  71,  79,  S5,  92. 

question  of  sufficiency  of,  for  the  court,  93. 

must  be  signed  by  the  debtor,  94. 

must  bind  debtor  personally,  95. 

conditional  effect  of,  87,  95. 

See  Indorsement. 
ACQUIESCENCE, 

effect  of,  in  equity,  61. 

distinction   between,  and  laches,  62. 
ACTIONS, 

lex  loci  controls,  when,  7  n.,  8,  9. 

lex  fori  controls,   when,  8. 

of  assumpsit,  embraced  in  Stat.  James  I.,  16-21. 

what,  ex  contractu,  are  within  the  statute,  16-26. 

for  debt  revived  by  new  promise  are  on  the  old  debt,  65  n. 

right  of,  may  be  lost  through  suit  brought,  when,  49  n.  (a) 

right  of,  revived  by  acknowledgment,  on  old  debt,  70  n. 

upon  debt,  revived  by  new  promise  or  acknowledgment,  must  be  upon 
the  old  debt,  81. 

when  promise  or  acknowledgment  is  conditional,  what  must  be  stated,  81. 

pleadings  in,  7,  81. 

See  Account;  Assumpsit;  Debt;    Pleadings. 
ADMINISTRATION, 

statute  suspended  until  letters  of,  granted,  6  n.,  54  n.  (a) 

bond,  when  suable,  162  n.  (a) 
ADMINISTRATOR, 

right  of  action  vested  in,  does  not  suspend  statute  as  to  heir,  6. 

effect  of  statute  upon,  and  relief  in  equity,  (>  n.  (</) 

Sec  Exei  1  roRS  and  Administrators. 


INDEX.  805 

ADMIRALTY, 

State  statutes  of  limitations  apply  to  actions  in,  when,  27. 

stale  demands  not  favored  by,  27. 
ADMISSION, 

of  claim,  effect  of,  09  notes. 

See  Acknowledgments. 
ADVERSE  POSSESSION, 

doctrine  of,  virtually  abolished  by  Stat.  3  &  4  Wm.  IV.  in  England,  3. 

when   title   by,  has   been   acquired,    cannot    be    impaired   by   subsequent 
repeal  of  or  change  in  law,  14. 

title  to  lands  of  government  cannot  be  acquired  by,  52,  254  n.  (a) 

grant  from  State  may  be  presumed,  when,  52. 

equity  bound  by,  58. 

possession  of  trustee,  possession  of  cestui  que  trusty  when,  58  n. 

party  claiming  title  acquires  title  by,  although  mistaken  in  his  claim,  59  n. 

mortgagee  in  possession  holds  adversely  to  mortgagor,  224-227,  235. 

how  it  may  cease  to  be  so,  58  n.  (a),  235. 

nature  of  title  by,  254  n.  (a)  (two  notes),  255  n.  (a) 

as  to  riparian  lands,  258  n.  (a),  269  n.  (a) 

as  to  ways,  258  n.  (a) 

title  by  and  period  of  occupancy,  under  statutes,  254,  255. 

when  under  color  of  title,  fee  passes,  254  n.,  259. 

wfuit  constitutes,  under  these  statutes,  256. 

cultivation  and  improvement  as  establishing,  255. 

using  land  for  pasture  occasionally  not  sufficient,  255. 

must  be  intent  and  effectuated  to  usurp  dominion,  256. 

entry  need  not  be  originally   wrongful,  256. 

naked  possession  in  subservience  to  the  legal  title,  256,  257. 

claim  and  occupancy  without  color  of  title  limited  to  actual  occupancy,  257. 

mere  verbal  objections  to  the  occupancy  by  the  owner  does  not  interrupt, 
258,   note. 

must  be  actual  entry  or  action  to  recover  possession,  258,  note. 

statutory  provisions  as  to,  in  some  States,  255. 

mode  of  occupancy  prescribed  by  statute  must  be  strictly  pursued,  255. 

Inclosure,  must  be  by  substantial  fence,  255,  257. 

fence  must  have  been  built  by  the  occupant,  255. 

disseisin,  what  constitutes,  when  statute  makes  no  provision  as  to,  256,  258. 

must  be  entry  and  possession  hostile  to  owner,  256-258. 

when   possession   commences   by  permission    of   the   owner,  how  il    may 
become  adverse,  256,  260,  note. 

distinction  between  disseisin  in  fact  and  by  election,  256. 

must  be  entry  or  possession  under  claim  of  title,  256,  and  notes. 

naked  possession  not  sufficient,  256. 

color  of  title,  entry  or  possession  without  effect  of,  257. 

species  of  occupancy  required,  257,  258. 

must  be  an  actual  pedis  possessio,  257,  258. 

qualities  of,  and  acts  which  constitute,  257,  258. 

cf  land  bounded  by  river  restricted  to  banks  of,  257,  n. 

may  give  title  to  land  under  water  by  actual  user,  257,  n. 

acts  which  are  not  possessory,  257,  258. 


8o6  STATUTES   OF   LIMITATION. 

ADVERSE   POSSESSION—  Continued. 
see  illustrating,  258. 

natural  barriers,  substitute  for  fence,  when,  257. 
entry  under  deed,  and  inclosing   more  land  than  the   deed  covers,  effect 

of,  257,  n. 
must  be  intention  to  claim  title,  258,  note, 
question  whether  there  has  been  a  disseisin  for  the  requisite  period  is  for 

the  jury,  258. 
question  as  to  what  constitutes,  is  for  the  court,  258. 
what  proof  requisite  to  establish,  258. 

acts  of  ownership,  and  not  mere  trespasses,  must  be  shown,  258. 
exercise  of  customary  rights  is  not,  258,  and  note, 
notoriety  of,  must  be  established,  258 

need  not  show  that  owner  actually  knew  of  the  hostile  claim,  258,  note, 
entry  under  color  of  title,  effect  of,  259. 
what  is  color  of  title,  259. 
may  be  by  parol  in  certain  cases,  259. 

land  must  be  definitely  described  in  deed  or  writing,  259. 
color   of   title   dispenses  with  pedis  possessio,  and   sufficient  occupancy  of 

pari,  constructively  extends  to  the  land  described,  259. 
species  of  occupancy  required,  259. 
must  conform  to  the  character  of  the  land,  and  the  ordinary  purposes  for 

which  such  lands  are  used  in  same  section  of  country,  259,  1st  note. 
bona  fides,  not  requisite,  except,  259,  and  note, 
executory  contracts,  etc.,  possession  under,  260. 

vendee's  possession  not  adverse  until  he  fully  performs  contract,  260. 
after  performance,  he  holds  as  owner  and  adversely,  260. 
exchange  of  lands,  difference  to  be  paid,   possession  not  adverse    until 

payment  is  made,  260. 
entry  under  license  not  adverse  unless,  260,  and  note, 
entry  under  parol  gift,  260. 
mixed  possession,  effect  of,  261. 
title  in  such  cases  draws  to  it  the  possession,  261. 
best  title  prevails,  261. 

limitations  upon  constructive  possession,  262. 
possession  of  wrong  land  by  mistake,  effect  of,  263. 
grantor  in  possession,  when  adverse,  264. 

landlord  and  tenant,  possession  of,  not  adverse,  unless,  265,  271  n.  (a) 
co-tenanis,  what  acts  of,  are  adverse,  266. 
what  possession  will  sustain  constructive  possession,  267. 
how  adverse  possession   may  be  proved,  268. 
continuity  of  possession,  269. 
how  continuity  may  be  broken,  270. 
tacking  of  different  possessions,  when  permitted,  271. 
ejectment,  effect  of,  272. 

continuity   of,  broken  by  entry  of  legal  owner,  270. 
by  acknowledgment  of  owner's  title,  270. 
by  recognition  of  owner's  title,  270. 
by  abandonment  of  possession,  what  is,  269,  270. 
See  Color  ok  Titus. 


INDEX.  807 

AGENTS, 

part  payment  by.  not  operative,  unless,  qg,  100,  103. 

what  payments  by,  operative,  79  n.  (a),  101  n.,  103  n. 

acknowledgment  by,  209. 

payment  made  to,  operative,  when    103. 

for  sale  of  goods,  statute  begins  to  run  against,  when,  123. 

for  investment  of  money,  123  and  notes. 

collection,  123  and  notes. 

demand,  presumed,  when,  123. 

demand  must  be  proved  or  presumed,  123. 

when  demand  dispensed  with,  123. 

implied  contract  between,  and  principal,  123. 

rule  when  account  has  been  rendered,  123. 

rule  when  principal  has  been  notified  that  collection  has  been  made,  123. 

when  hft  stands  in  position  of  trustee,  123,  200  n.  (a) 

general,  123  n. 

retaining  possession  of  lands  or  other  property  purchased    for  principal, 
is  trustee  for  him,  200,  and  notes. 

See  Creditor. 
ALIEN  ENEMY.     See  Disabilities. 
AMENDMENT.     See  Judicial  Process. 

ANCESTOR, 

statute  having  begun  to  run  against,  not  suspended  by  disability  of  heir,  6. 

ANNUITY, 

meaning  of,  when  charged  on  land,  32  n.  (a) 

ANSWER, 

of  statute,  available,  when,  7  n. 

in  New  York,  statute  must  be  set  up  by  way  of,  7  n. 

to  bill  in  equity,  admission  of  debt  in,  effect  of,  73  n. 
APPROPRIATION, 

of  payments,  rules  relating  to,  no. 

See  Part  Payment;  Payments. 
ARBITRATION, 

offer  to  submit  debt  to,  effect  of,  80. 

See  Acknowledgment;  Award. 

ASSAULT,  Etc., 

statute  begins  to  run  against  actions  for,  when,  123. 

ASSESSMENT, 

subscription  to  stock,  payable  by,  when  statute  begins  to  run,  119  n. 

notes  subject  to,  129. 

statute  begins  to  run  against,  when,  164. 

presumed  to  be  paid,  when,  172. 
ASSIGNEE, 

payment  of  dividend  by,  effect  of,  101. 

for  life,  payment  of  interest  by,  80  and  n.  (a) 

in  bankruptcy  and  insolvency,  202. 
ASSIGNEE  IN  BANKRUPTCY, 

has  same  remedies  as  bankrupt  had,  16. 


8o8  STATUTES   OF    LIMITATION. 

ASSIGNMENT, 

of  property  in  trust  to  pay  debts,  effect  of,  21  n.  (a),  86  n. 
disseised  mortgagee  cannot  make,  235  n.  (a) 

ASSUMPSIT, 

treated  as  embraced  by  trespass  on  the  case,  2  n. 

when  action  of,  first  came  into  use,  2  n. 

embraced  in  Slat.  21  James  I.,  though  not  mentioned,  2  n,  16-20. 

for  what  it  lies,  20,  21. 

foreign  judgments  recoverable  in  action  of,  16,  20, 

promissory  notes,  bills  of  exchange,  checks,  etc.,  16. 

attorney's  bills,  16. 

money  lent  on  deposit  of  title-deeds,  16. 

express  or  implied,  20  and  n.  (a) 

for  torts,  when,  21,  177. 

may  be  brought  instead  of  account,  when,  24. 

lies  to  recover  money  paid  by  co-obligor  on  bond,  35. 

balance  between  partners,  when,  35. 

legacy,  when,  35. 

balance,  though  arising  from  specialty  debt,  35. 
debt  may   sometimes   be   brought    when   action   of  assumpsit  would    be 
barred,  58  n. 

ATTORNEY, 

bills  of,  recoverable  in  assumpsit,  and  when  due,  16. 

statute  begins  to  run  for  money  collected  by,  from  date  of  collection,  18. 

except  when  he  fraudulently  conceals  the  fact,  18,  122. 

debt   taken   for  collection   on   shares,    statute   begins    to   run    on    claim, 

when,  119. 
statute  begins  to  run  on  claim  of,  for  services,  when,  121. 
against,  for  misfeasance  or  malfeasance,  when,  122. 
lien  of,  may  be  enforced,  though  debt  is  barred,  222  n. 

AWARD, 

payment  of,  how  pleaded,  15  n.  (a) 
is  a  specialty,  29  n  (a) 

B. 
BANK, 

when  a  trustee,  200  n.  (a) 

BANK  BILLS.     See  Notes. 

BANKRUPTCY, 

payment  of  a  dividend  under  commission  against  one  partner  saves  stat 

ute  as  to  the  other,  58  n. 
effect  on  statute,  21  n.  (<i) 

See  Insolvency. 

BEGINS  TO  RUN.     See  Running  of  Statute. 
BILLS  OF  EXCHANGE, 

payable  one  "  month  "  after  date,  means  calendar  month,  55. 

giving  in  part  payment,  effect  of,  114. 

See  Assumpsit;  Check;  Notes, 


INDEX.  809 

BOND, 

surety  on,   suing   for  contribution,  statute  relative  to  simple   contracts 
applies,  19. 

official,  when  not  within  the  statute,  52,  154  n.  (a) 

co-obligor,  who  has  paid,  may  bring  assumpsit  for,  35. 

action  upon  title,  equity  appliest  statute  to,  58. 

effect  of  acknowledgment  of,  66,  176,  285. 

as  specialties,  presumed  to  have  been  paid,  when,  29,  172. 

statute  begins  to  run  on,  when,  172  n.,  175. 
See  Specialties. 
BOUNDARIES.     See  Adverse  Possession. 
BURDEN  OF  PROOF.     See  Evidence. 
"  BY"  A  CERTAIN  DAY, 

act  to  be  done,  must  be  fully  completed  the  day  before,  56. 
BY-LAWS, 

action  on,  within  the  statute,  19. 

c. 

CAUSE  OF  ACTION, 

when  it  accrues,  118  n.  (a),  119. 
CERTIFICATE, 

of  deposit,  when  statute  begins  to  run  on,  118  n.,  142  and  n, 

of  stock,  right  to  demand,  149  n  (a) 
CESTUI  QUE   TRUST, 

may  set  up  statute  whenever  trustee  could,  41. 

possession  of  trustee  inures  to  benefit  of,  when,  58  n. 

laches  of,  effect,  200  n.  (a),  205  n.  (a),  218  n.  (a) 
See  Trusts. 
CHANGE  IN  STATUTE, 

when  constitutional,  n. 

when  made,  which  governs,  12. 

as  affecting  crimes,  13. 

rule  when  title  to  land  is  concerned,  14.  , 

CHATTEL  MORTGAGES.     See  Mortgages. 
CHECK, 

assumpsit  on,  16. 

when  it  discharges  debt  for  which  given,  16. 

rules  relating  to,  124  n.  (a),  140. 
CITY  ORDERS.     See  Orders. 
CLOUD  ON  TITLE, 

equity  may  prevent,  255. 
CO-CONTRACTORS,  Etc., 

statutory  provisions  as  to,  285 

doctrine  of  Whitcomb  v.  Whiting  generally  repudiated,  286. 

present  doctrine  in  this  country    287. 

partners,  effect  of  part  payment  or  acknowledgment  by  one,  after  disso- 
lution, 287. 

payment  by  one  at  request  or  by  direction  of  the  other,  288. 


8lO  STATUTES   OF   LIMITATION. 

COLLATERAL  SECURITY, 

giving,  for  debt  on  which  statute  is  running,  effect  of,  21,  70  n.,  101  and 
n.  (a),  145  n. 

loss  of  remedy  on,  effect,  282  n.  (a) 
COLLATERAL  UNDERTAKING, 

debt  lies  upon,  when,  25. 
COLOR  OF  TITLE, 

what  is,  and  effect  of,  25S  n.  (a),  259. 

See  Adverse  Possession. 
COMMENCEMENT  OF  ACTIONS, 

48,  11S,  289-291,  294. 
COMPOSITION, 

default  in  payment  under,  effect,  137  n.  (a) 
COMPROMISE, 

offer  of,  not  an  acknowledgment,  68  n.,  78,  97  n.  (a) 
See  New  Promise. 
COMPULSORY  PAYMENTS, 

effect  of,  101. 

See  Part  Payment. 
COMPUTATION  OF  TIME, 

how  time  is  computed  under  statutes  of  limitations,  54-57. 

fractions  of  days  may  be  reckoned,  when,  54. 

"  from  "  debt  payable,  whether  included  or  excluded,  54. 

meaning  of  "  month  "  in,  55. 

"  years,"  meaning  of,  in,  57. 
CONCEALMENT, 

absence  as  a,  249. 

See  Disabilities, 
CONCURRENT  JURISDICTION, 

rule  in  equity  in  cases  of,  58. 
CONCURRENT  REMEDIES, 

rule  as  to,  when  statute  gives,  38. 
CONDITION  PRECEDENT, 

statute  runs  only  when  performed,  119  and  n.  (<:) 
CONDITIONAL  ACKNOWLEDGMENT, 

when  sufficient,  73  n.,  77. 

offer  to  pay  in  specific  property,  75. 

See  Acknowledgment. 

condition  must  be  accepted,  77. 

can  only  be  enforced  according  to  the  condition,  77  n 

offer  to  compromise,  68  n.,  78. 
CONFLICT  OF  LAWS, 

between  statutes  of  different  States,  42  n.  (a). 
See  Foreign  Statute. 
CONSEQUENTIAL  INJURY. 

action  fot,  arises,  when,  178. 

ignorance  of,  does  not  suspend  the  statute,  178. 

damage  must  ensue  from,  before  cause  of  action  arises,  178. 

see  Bonomi  v.  Backhouse,  178  n. 


INDEX.  8ll 

CONSTITUTIONALITY, 

of  limitation  acts,  4  n.,  II,  12. 

power  of  legislature  to  change,  II. 

right  relating  to  remedy  not  vested,  11,  39  n.  (a) 

after  statute  bar  complete,  cannot  by  change  of  statute  revive  the  claim,  11. 

change,  affecting   existing  claims,    must   give    reasonable   time   to  bring 
action,  II. 

statute  may  be  made  retrospective,  n  n. 

statute  barring  foreign  judgments,  8  n.  (a) 

statute  allowing  conveyance  of  land  held  adversely,  264  n.  (a) 
CONSTRUCTIVE  POSSESSION.     See  Adverse  Possession. 
CONSTRUCTIVE  TRUSTS.     See  Trusts. 
CONTRACT, 

obligation  of,  is  what,  II. 

rights  relating  to  remedy  upon,  not  vested,  ri. 

covered  by  Stat.  James  I.,  16-20. 

clauses  in  statutes  that  cover  simple  contracts,  23-26. 

waiver  of  the  statute  by,  7,  51. 

shorlening  statutory  period  by,  41  n.  (a),  76  n. 

limitation  may  depend  upon  presumed  intent  of  the  parlies,  20  n.  (a) 

substitutions  and  renewals  of,  effect,  35  n.  (a) 

action  to  annul,  barred,  58  n. 

to  be  performed  in  one  "  month,"  etc.,  means  calendar  month,  55. 

action  to  reform,  barred  by  statute,  58. 

express  or  implied,  when  statute  begins  to  run  on,  141. 
See  Constitutionality;  Lex  Loci  Contractus;  Simple  Contracts;  Special- 
ties; Waiver. 
CONTRIBUTION, 

between  sureties,  145  n.  (a) 
CO-OBLIGOR.     See  Bonds. 
CO-PURCHASERS, 

statute  begins  to  run  between,  when,  171. 
CORPORATION, 

bill  to  compel  issue  of  stock  by,  will  not  lie  when  party  has  been  guilty 
of  gross  laches,  60  n. 

as  to  officers'  frauds,  59  n.  (a),  155  n.  (a),  187  n.  (a) 

acknowledgment  or  new  promise  by,  who  may  make,  91. 
See  Stockholders. 
COSURETIES, 

statute  begins  to  run  between,  when,  171. 
CO-TENANTS, 

action  lies  by,  when,  24,  169,  276. 
COUNTERCLAIM. 

plaintiff  cannot  avail   himself  of   statute  against,  unless  replied  thereto, 
11  n. 

See  Set-off. 
COUNTIES, 

subject  (o  statute,  53. 

new,  made  liable  for  the  old,  effect,  39  n.  (a) 


8 12  STATUTES   OF    LIMITATION. 

COUPONS, 

when  statute  begins  to  run  on,  127. 

COURT, 

quality  of  acknowledgment  is  one  for,  66  n. 
questions  for,  relating  to  acknowledgments,  68. 
payment  into,  effect  of,  107. 
orders  of,  statute  begins  to  run  on,  when,  157. 

COVENANT, 

for  what,  action  of,  lies,  26 

effect  of  varying,  sealed  contract  by  agreement  not  under  seal,  26. 

assumpsit  or,  when,  35. 

for  quiet  enjoyment,  statute  begins  to  run  on,  when,  173. 

of  warranty,  broken,  when,  39  n.  (a),  173,  174. 
COVERTURE.     See  Disabilities;  Married  Women. 

CREDITOR, 

may  appropriate  payments,  when,  no. 

cannot,  as  agent,  make  part  payment  to  himself,  101  and  n.  (a) 

bill  by,  stops  statute,  2S9  n.  (a) 

allowance  of  claim  of,  in  Probate  Court,  effect,  199  n.  (a) 
See  Part  Payment;  Payments. 
CRIM.  CON., 

statute  begins  to  run  in  actions  for,  when,  185. 

CRIMES, 

penal  statutes  never  extraterritorial,  8  n.  (a) 

statute  barring  prosecution  of,  cannot  be  changed  so  as  to  apply  thereto 

after  the  bar  is  complete,  13. 
may  be  changed  before  the  bar  is  complete,  13. 
no  limitation  to  prosecution  of,  at  common  law,  28. 
CUMULATIVE  DISABILITIES, 

when  may  be  relied  on,  23-24. 
illustration,  23,  24,  599-604  and  notes. 

See  Disabilities. 
CURTESY, 

tenant   by,  is  estopped  froom  denying  the  title  of   those  under  whom  the 
tenancy  is  derived,  265. 

See  Adverse  Possession. 
CUSTOM, 

money  due  by  virtue  of,  within  the  statute,  19. 

D. 
DAYS, 

upon  which    debt    is  due,  excluded   or  included  in    computing  time  from 

which  action  accrues,  54-57. 
included  in  some  Stales  and  excluded  in  others,  54. 
when  act  is  to  be  done  "  after"  a  certain  rule,  54. 
fractions  of,  when  reckoned.     See  Computation  of  Time. 

DEAF  AND  DUMB, 

pi  rson  ,  n"i  within  the  disabilities  of  the  statute,  239. 


INDEX.  813 

DEATH, 

of  party,  effect  of,  on  running  of  statute,  6. 
DEBT, 

action  of,  lies  on  simple  contracts,  when,  25. 

when,  upon  a  specialty,  25. 

action  of  assumpsit  superseded  it,  when,  25. 

may  be  brought  whenever  indebitatus  assumpsit  can,  25. 

slatutory  provisions  relative  to,  25  n. 

in  action  of,  statute  applicable  to,  applies  although  assumpsit  might  be 
brought,  and  action  of,  would  be  barred,  58  n. 

amount  of,  may  be  shown  by  parol,  87. 

identity  of,  must  be  established,  when,  108. 
DEBTOR, 

may  direct  appropriation  of  payment,  no. 

See  Part  Payment;   Payments. 
DECLARATION, 

new,  filed  in  case  statute  runs  from  date  of  filing,  7  n. 

amended,  when  statute  attaches  to,  7  n.,  294  n.  (a) 
DECREE.     See  Judgment. 
DEEDS, 

specialties,  26,  29. 

recital  of  debt  in,  effect  of,  80,  92. 
DEMAND, 

statute  does  not  begin  to  run  until,  for  deposits  with  bankers,  17. 

when  necessary  to  put  statute  in  motion,  24  n.  (a),  118. 
See  Running  of  Statute. 

when  necessary  to  put  statute  in  motion  as  to  bills,  notes,  etc.,  124-140. 

presumed  to  be  made  within  "  reasonable  time,"  125. 

when,  in  fact  is  made,  125. 

in  actions  against  agents,  factors,  etc.,  when  necessary,  123. 

when  delay  in  making,  is  contemplated,  124. 

on  note  payable  "  any  time  within  two  years  "  puts  statute  in  motion  at 
once,  125. 
DEMURRER, 

when  statute  may  be  made  available  by,  7  and  n.  (a),  200  n.  (a) 

to  bill   for  recovery  of  legacy  is   not  supported    by  presumption  of   pay- 
ment, 199. 
DEPOSIT, 

certificate  of,  when  statute  begins  to  run  on,  118  n.,  142. 

with  bankers,  being  loans,  are  recoverable  in  assumpsit,  17,  118  n.  (a) 

when  statute  runs  against,  17,  rig  n.,  142. 

special,  rule  as  to,  18. 
DE  SOAr  TORT.     See  Executors  and  Administrators. 
DETINUE, 

wager  at  law  formerly  check  upon  actions  of,  2  n. 
DEVASTAVIT. 

executor,  etc.,  liable  for,  when  time  is  allowed  to  run  against  the  estate, 
197. 
DEVISEE, 

disability  of,  does  not  suspend  statute,  when,  6. 


Sl4  STATUTES   OF    LIMITATION. 

DEVISOR, 

statute  having  begun  during  life  of,  runs  as  to  devisee,  6. 
DISABILITIES, 

statute  having  begun  to  run,  not  stopped  by  intervening,  6. 

must  have  existed  when  statute  began  to  run,  6. 

of  devisee,  6. 

cumulative,  when  may  be  relied  on,  6,  237  n.,  251. 

what,  exist  by  statute,  237. 

"  under  legal  disabilities,"  meaning,  237  and  n.,  240. 

infancy,  238. 

insane  persons,  239. 

coverlure,  6,  237,  240. 

imprisonment,  241. 

injunction,  243. 

alien  enemy,  6,  242. 

absence  of  defendant  from  State,  244-246. 

joint  debtors,  absence  of  one,  246. 

residence,  if  not  continuous,  must  aggregate  the  full  period,  247. 

residence  in  one  State,  and  doing  business  in  another,  247. 

absconding  debtors,  248. 

concealment,   249,  275. 

foreign  corporations,  250. 

coexisting,  all  must  be  removed.  6,  251. 

must  be  one  provided  by  statute,  252. 

of  defendants,  253. 
DISCHARGE, 

in  bankruptcy,  effect,  21  n.  (a) 

of  mortgage,  84  n.  (a) 
DISSEISIN, 

what  constitutes,  256. 

of  mortgagee,  235  n.  (a) 

See  Adverse  Possession. 
DISTRIBUTIVE  SHARES.     See  Estates. 

DIVIDENDS, 

effect  of  statute  upon,  20  n.  (a),  21  n.  (a) 

DIVORCE, 

proceeding  to  annul,  within  statute,  58  n. 
DOWER, 

tenant  by,  is  estopped  to  deny  title  of   those  under  whom   the    tenancy  is 

derived,  265. 

See  Adverse  Possession. 

not  within  the  statute,  unless  made  so  expressly,  256  n.  (n),  173. 

statutory  provisions  as  to,  273. 

E. 
EJECTMENT. 

limitation  as  to,  35  n.  (a) 

action  of,  barred,  equity  will  not  give  relief,  58  n. 

effect  of  bringing,  upon  adverse  possession,  272. 


INDEX.  815 

ELEGIT, 

lenant  by,  is  estopped   from   denying  title  of  those  under  whom  the  ten- 
ancy is  derived,  265. 

See  Adverse  Possession. 
EMINENT  DOMAIN, 

limitation  in  matters  of,  19  n,  258  n.  (a),  260  n.  (a) 
ENTRY, 

right  of,  barred,  equity  will  not  give  relief,  58  n. 

non-payment  of  rent  for  twenty  years  will  not  bar  entry,  58  n. 

of  legal  owner,  breaks  continuity  of  adverse  possession,  270. 

how  must  be  made,  270. 

statutory  provisions  as  to,  270. 
EQUITABLE  ACTIONS, 

adoption  of  statute  in,  58,  59. 

See  Equity. 
EQUITABLE  ESTOPPEL.     See  Estoppel. 
EQUITABLE  LIEN, 

for  purchase-money  of  land,  not  defeated  by  running  of  statute  upon  the 
debt,  232,  236  n. 

distinction  between,  and  mortgage,  232. 
EQUITY, 

continuing  trust,  not  barred  in,  58  n. 

stale  demands  discouraged  in,  58  n.,  59  and  n.  (a) 

will  not   give   relief   in   cases   of  constructive   trusts    when    statute    has 
run,  58  n. 

rule,  when  suit  at  law  could  be  brought  for  same  matter,  58. 

applies  statute,  where  money  is  paid  by  mistake,  58  n. 

will  not  give  relief  where  right  of  entry  or  ejectment  is  barred,  58  n. 

rent-charge  not  barred  in,  5S  n. 

limitations  strictly  applied  in  case  of  executors,  etc.,  58  n. 

courts  of,  in   cases  of  concurrent  jurisdiction  adopt   statute  by  analogy, 

58,  59- 
will  not  relieve  against  usury  when  statute  has  run,  58  n. 
fraud  saves  rights  in,  though  barred  at  law,  58,  275. 
statute  expressly  applied  to,  in  some  States,  58. 
will  not  treat  demand  as  stale,  when,  60. 
statute  does  not  apply  as  to  purely  equitable  matters,  59. 
Federal  courts  of,  apply  State  statutes,  27,  40  a  and  n.  (a) 
will  refuse  relief  when  party  guilty  of  gross  laches,  27,  5Q,  62. 
trustee  not  permitted  to  set  up  statute  in,  when,  59  n. 
will  effectuate  legal  rights  of  parties  when  barred  at  law,  in  certain  cases, 

60,  63. 
will  prevent  cloud  on  title,  255  n.  (u) 
discourages  stale  demands,  60. 

makes  distinction  between  laches  and  acquiescence,  61,  62. 
admission  of  debt  in  answer  to  a  bill  in,  effect  of,  73  n. 

See  Injunction;  Mistake;  Specific  Performance. 
ESTATES, 

action  for  distributive  share  of,  not  within  statute,  40. 
by  the  curtesy,  relation  of  statute  to,   259  n.  (a) 


8l6  STATUTES   01    LIMITATION. 

ESTOPPEL, 

l>y  deed,  arises  duly  between  privieB,  41  n.  (a) 

mere  equitable,  will  not  prevent   party  from  relying  on  statute,  41, 
by  inducing  delay,  42  n.  (4),  66  n.   (a)  119. 
by  silence,  effect,  6(1  n.  (a) 

EVIDENCE, 

parol,  admissible  to  sbow  amount  of  debt  revived  by  written  acknowlcdg 
ment  or  promise,  87. 

burden  of  proving  exceptions  to  the  statute,  7  n.  6/) 

burden   of    showing    that    promise,    etc.,    applies    to    debt    in   suit,  etc.,  is 

upon  plaintiff,  i).\  n.,  <)7  n.,   I  if). 
p  mil,  admissible  as  (o  pail   payment,   when,  q8  n.,   Ill,   115,  116. 

to  supply  a  date  or  name,  o|. 
indorsement  of  payment  on  notes,  effect  of,   1 1 5. 
P  irol,  admissible  to  show  that  deed  was  intended  as  mortgage,  236. 

EXECUTION, 

issued  on  judgment,  effect,  30  n.  (/),  101  n.  (/')  and  n.  (a) 

EXECUTORS  AND  ADMINISTRATORS, 

exei  u 1 01 ,  having  personal  assets,  liable  in  assumpsit  for  legacy,  when,  3^ 

statute  strictly  applied  in  favor  of,  in  equity,  58  n. 
as  to  legacies,  58  n. 

actions  for  fraud  of,  against  sureties,  must  be  commenced,  when,  58. 
qucere,  whether  one  can  pbad  statute  when  the  other  refuses  to,  68  n. 
payment  by,  under  decree  of  court,  does  not  remove  statute  bar,  220. 
appointed  in  one  State  docs  not  put  statute  in  operation  iii  another,  117  n. 

statute  does  not  begin  to  run  for  or  against  estate  until  appointment  of, 

117. 
statute  begins  to  i  un  in  favor  of  sureties  upon    bonds  of,  when,  162. 
may  pay  debts  bailed  by  statute,   when     188. 
when  creditor   is  executor,  etc.,  189. 

acknowledgment  by,  [88  n.  (a),  ego. 

bv    one   of   Several    executors,    I'JO  n. 

what  acknowledgment  by.  is  sufficient,  191. 

wheie  exei  UtOI    IS  also  devisee  in  trust,   192. 

where  Statute  has  run  upon  debt  due   the  estate,  193. 

when-  Statute  has  beeun  to  run  in  life  of  intestate,  \>)4- 

dt  ton  tot  /,  195. 

effei  1  Of  appointment  of,  in  another  State,   io|- 

1  itutory  provisions  relative  to  actions  by,  196. 
when  parties  in  interest  may  set  up  statute,  i<)7. 
1  Ighl  of,  i"  set  "i!  debt,  [98. 

nil      [n  equity  as  to  claims  against  decedent's  estates,  191). 
allowam  e  ol  ai  1  ouni  of,  effect,  199  n.  (</) 
accounting  foi  new  asset  ,  [99  n.  (a) 

liable  for  devastavit  by  allowing  statute  to  run  against  estate,  197. 
exei  utot  enti  ring  on  lands  oi  estate  is  trustee  for  heirs,  unless,  20c  n. 
bold  property  ol  estate  In  trust,  r,s  '»•  (n),  205. 
ol  t,  usti  e,  bavi   no  title  to  ti  ust  property,  206. 
EXPRESS  TRUSTS.     Sec  I'm 


INDEX.  817 

F. 

FACTORS.     See  Agents. 
FALSE  IMPRISONMENT, 

statute  begins  to  run,  when,  178. 
FEDERAL  COURTS.     See  United  States. 
FEME  COVERT.     See  Married  Woman. 
FENCE, 

to  evidence  adverse  possession,  must  be  substantial,  255,  257. 

must  extend  around  the  whole  lot,  when,  257. 

built  merely  for  convenience  does  not  show  ownership,  257. 

not  sufficient  evidence  of  possession,  of  itself,  257. 
FINES, 

with  proclamation,  effect  of,  and  to  what  applied,  2  n. 
FORECLOSURE.     See  Mortgages. 
FOREIGN  CORPORATION, 

not  within  the  statute,  250. 
FOREIGN  JUDGMENT, 

what  are,  30. 

simple  contract  debt,  when,  30. 

rules  in  different  States,  as  to,  8  n.  (a),  30.  31. 

only  p  rim  a  facie  evidence  of  debt,  when,  30. 
See  Judgments. 
FOREIGN  STATUTE, 

when  may  bar  a  domestic  claim,  8  n.  (a),  23  n.  (a) 

when  may  be  enforced,  149  n.  {a) 
FORGED, 

instruments,  when  statute  begins  to  run  on,  143. 
FRACTIONS  OF  DAYS, 

when  reckoned.     See  Computation  of  Time. 
FRAUD, 

equity  will  relieve  against,  when  action  at  law  is  barred,  58  n 

in  cases  of  trust,  60  n.  (a) 

at  law,  in  some  States,  statute  runsonlv  from  discovery  of,  58. 

this  does  not  apply  to  negligence,  289  n. 

in  actions  against  executors,  statute  runs   from    coommission   of,  unless 
the  fraud  was  that  of  executor  himself,  58. 

actions  for,  against  sureties  of  administrator  must  be  com  me  need,  when,  58. 

by  attorney  in  conceding  fact  of  collection,  effect,  18,  122. 

fraudulent  representations,  statute  runs  on,  when,  155. 

property  obtained  by,  158. 

in  dealing  with  lunatic's  estate,  239  n.  (a) 

concealment  of  a  conversion,  etc.,  effect  upon  statute,  13  n.  (a),  59  n.  (a)f 
184  n. 

on  part  of  mortgagee,  effect  of,  231. 

effect  of,  in  suspending  the  statute,  274-276 

statutory  provisions  as  to,  21  n.  (<r)  274. 

equitable  rule  in  case  of,  concealed,  275. 

actual  and  constructive,  276  n.  (a) 
[stats,  of  lim. —  52] 


8l8  STATUTES   OF   LIMITATION. 

FRAUDULENT  CONCEALMENT.     See  Fraud. 

FRAUDULENT  REPRESENTATIONS.     See  Fraud. 

"  FROM  "  AND  "  AFTER."     See  Computation  of  Time;  Days. 

G. 

GOVERNMENT, 

in  actions  against,  courts  bound  to  take  notice  of  statute,  when,  7  n.;  see 
52  n.  (/>) 

adverse  possession  against,  52,  254  n.  (a),  258  n.  (a) 
GRANT, 

from  State  may  be  presumed,  when,  52. 

statute  applies  to  equitable  right  when  it  would  operate  against  a,  58  n. 
GROUND  RENT, 

presumed  to  have  been  paid,  when,  172. 
GUARANTORS, 

who  are,  146. 

statute  begins  to  run  for  or  against,  when,  146,  151,  154  n.  (a) 
as  to  separate  advances,  20  n.  (a) 

distinction  between  contingent  and  absolute,  146. 

payments  by  obligor  do  not  affect,  41  n.  (a) 
GUARDIANS, 

statute  begins  to  run  in  favor  of,  when,  163. 

in  possession  of  estate  of  ward,  holds  it.  in  trust  for,  204. 

H. 
HEIR, 

statute   not  suspended   in    favor  of,  because    right  to   sue   is  in  adminis- 
trator, 6. 

disability  of,  does  not  suspend  statute  when  it  had  begun  to  run  during 
life  of  ancestor,  6. 

may  avail  themselves  of  statute,  when,  41. 

statute  begins  to  run  for  or  against  a'ien,  when,  161. 
HENRY  VIII., 

statute  of,  gave  first  relief  against  stale  claims,  2. 
HISTORY, 

of  limitation  acts,  2. 
HUSBAND  AND  WIFE, 

adverse  possession  between,  365  n.  («). 

tacking  possessions  of,  271. 

payment  by  husband,  effect, 

See  Married  Woman. 

I. 
IMPRISONMENT.     See  Disabilities. 
INCUMBRANCES, 

agreement  to  pay,  statute  runs  on,  when,  165. 
JNDEBITA  TUS  ASSUMPSIT, 

remedy  of  surety  against  principal,  145. 
See  Assumpsit. 


INDEX.  819 

INDEMNITY, 

contracts  of,  what  are,  and  when  statute  runs  on,  146. 
INDORSEMENT, 

on  note,  at  time  of  making,  requesting  indulgence  if  not  paid  at  maturity, 
effect  of,  70  n. 

of  payment  on  note,  41  n.  (a),  97  n  (<z),  105  n.  (/') 

liability  on,  not  affected  by  maker's  acknowledgment,  97  n  (a),  103  n.  (a), 
134  n.  (a) 

when  statute  begins  to  run  against  indorser,  145. 
INFANCY, 

what  constitutes,  237. 

See  Disabilities. 
INJUNCTION, 

preventing   the   bringing  of  an  action   at   law,  does  not  suspend  statute, 
unless,  6  n.,  243. 

statutory  provision  as  to,  in  certain  States,  243. 

application  for,  does  not  suspend  the  statute,  243. 

only  suspended  while  injunction  is  actually  in  force,  6  n.,  243. 
INSANE  PERSONS, 

statute  does  not  run  against,  until  sanity  is  restored,  239. 
See  Disabilities. 
INSOLVENCY, 

effect  on  the  statute,  21  n.  (a),  46,  86  n.  (6) 

debtor's  part  payment,  as  a  preference,  101  n.  (a) 

discharge  under,  in  one  State  not  binding  in  another,  20  n. 
See  Bankruptcy;   Receiver. 
INSTALMENTS, 

money  payable  by,  statute  begins  to  run  on,  when,  151. 

mortgage  payable  by,  statute  begins  to  run,  when,  224. 
INSURANCE  POLICIES, 

limitations  in,  effect  of,  42-47,  289  n. 

may  be  waived.  42,  51  n.  (a) 

what  will  excuse  delay,  42. 

when  claim  arises  under,  42-45. 
INSURRECTION, 

States  in.     See  Rebellion;   War. 
INTEREST, 

payment  of,  revives  principal,  when,  32  n.  (a),  68  n.  and  n.(  a),  80  and  n. 

(«),  105. 

warrants  for,  127. 

See  Coupons. 
INVENTORY, 

inserting  debt  in,  effect  of.     See  Acknowledgment. 

1. 
JAMES  I., 

statute  of,  took  place  of  all  others,  2. 
rights  of  crown  barred  by,  when,  2  n. 

statute  of,  embraces  simple  contracts,  16-20 


820  STATUTES    OF    LIMITATION. 

JOINT  DEBTORS, 

payment  by  one,  effect,  171. 
JOINT  TENANTS, 

effect  of  disability  of  one.     See  Tenants  in  Common. 
JUDGMENT, 

merger  of  cause  of  action  in,  21  n.  (3),  30  n.  (a) 

of  inferior  court,  debt  lies  for,  25. 

when  barred,  21  n.  (a) 

specialties,  when,  30. 

effect  on,  of  issue  of  execution.  30  n.  (l>) 

proceedings  in  equity  to  set  aside,  for  fraud,  statute  applied,  58  n. 

payment  on,  for  part  of  debt,  effect  of,  101  and  n.  (/') 

payment  of  costs  does  not  remove  the  statute  bar,  97  n. 

confessed,  clerk  to  assess,  statute  begins  to  run  on,  when,  119  n. 

presumed  to  have  been  paid,  when,  172. 

agreement  to  pay,  effect  of  statute  upon,  20  n.  (a). 

municipal  assessments,  treated  as,  172  n. 
See    Execution. 
JUDICIAL  PROCESS, 

when  action  is  treated  as  commenced,  289. 

statutory  provisions  as  to,  290. 

issue  of  writ  suspends  statute,  when,  289,  291. 

how  kept  on  foot,  290,  291. 

dale  of  writ  not  conclusive,  291. 

filing  claim  before  commissioners  of  estate,  effect  of,  292. 
pleading  matter  in  set-off,  292. 
mistaken  remedy,  effect  of,  293. 

when  plaintiff  becomes  nonsuit,  293. 

abatement,  of  suit,  judgment  reversed,  or  suit  dismissed,  effect,  293,  296. 

amendment  of  process,  effect  of,  1S3  n.  (<?),  294, 

bringing  in  new  parties,  294. 

bill  in  equity  does  not  suspend,  295. 
JURY, 

question  whether  acknowledgment  was  made  or  not,  is  for,  66  n. 

whether  it  relates  to  a  particular  debt,  68. 

what  questions  relating  to  acknowledgments  are  for,  68. 

questions  for,  relating  to  part  payment,  109. 

as  to  appropriation  of,  no. 

L. 

LACHES. 

in  admiralty,  27. 

in  Federal  courts,  27,  40  a,  n.  (a) 

not  imputable  to  State,  52. 

not  applicable  at  law,  60  n.  (</) 

party  may  be  held  guilty  of,  in  equity,  where  action  at  law  is  not  barred, 

27.  58-60. 
gross,  party  guilty  of,  equity  will  not  relieve,  27,  59,  62. 

used,  when,  60,  61, 
in  1  ases  of  fraud  "i  trust,  59  n.  (</),  60  n.  (<») 


INDEX.  821 

LACHES  —  Continued. 

distinction  between,  and  acquiescence,  62. 

in  foreclosure,  222  n.  (</) 

See  Acquiescence;   Fraud;  Trusts. 
LAND, 

title  to,  acquired  by  adverse  possession,  cannot  be  invalidated  by  subse- 
quent repeal  of  or  change  in  the  statute,  14. 

action  to  subject  testator's,  to  payment  of  debts,  barred,  when,  58. 

power  of  Probate  Court  to  direct  sale  of,  within  equity  of  statute,  5S  n. 

action  to  recover  for,  taken  under  legislative  proceedings,  barred,  58  n. 
See  Adverse  Possession. 
LANDLORD  AND  TENANT, 

tenant  cannot  deny  landlord's  title,  265. 

effect  of  tenant's  possession,  265  n.  (a) 

tacking  possessions  of,  271  n.  (a) 

exceptions  to  the  rule,  265  n. 
LEASES 

specialties,  when,  29. 
LEGACY, 

statute  applies  to,  when,  19,  40. 

assumpsit  lies  to  recover,  when,  35. 

when  statute  begins  to  run  against,  35. 

presumption  of  payment  of,  arises  when,  40,  199. 

presumed  to  have  been  paid,  when,  172. 

not  within  the  statute,  unless,  199. 

rule  when  real  estate  is  charged  with  payment  of,  199  n. 

lapse  of  time  does  not  raise  such  presumption  as  to  support  demurrer  to 
bill  for,  199. 
LEGAL  MEMORY.     See  Memory. 
LEX  FORI, 

prevails  as  to  limitations,  unless  statute  olherv\ise  provides,  S. 

statute  only  relates  to  remedy,  1  n.  (a),  8  n. 

situs  of  contract  does  not  control  remedy,  8,  11  n.  (a) 

distinction  when  statute  destroys  both  the  remedy  and  right,  S  n. 

when  right  is  created  and  limited  by  statute,  1  n.  (a),  8  n  ,  9. 
LEX  LOCI  CONTRACTUS, 

prevails,  when,  8  n.,  9,  11  n.  (a) 
LEX  RE  I  SIT.E, 

prevails  as  to  realty,  8,  14. 

as  to  personal  actions,  when,  8  n.,  10. 

when  right  is  created  and  limited  by  statute,  8  n. 
LIEN, 

vendor's  statute  applies  to,  20. 

by  statute,  for  simple  contract  debt  not  barred  when  debt  is,  21 

given  by  law,  statute  begins  to  run  on,  when,  170,  221  n.  {ci) 

attorney's,  remains,  though  debt  is  barred,  222  n. 

generally,  3  n.  (a),  222. 

mortgage,  remains  valid,  although  debt  is  barred,  222,  2j4. 

how  mortgagee's  rights  may  be  defeated,  222  n. 
See  Equitable  Lien. 


822  STATUTES   OF   LIMITATION, 

LIEN  —  Continued. 

for  purchase-money  of  land,  distinction  between,  and  mortgage,  232. 

exists,  though  debt  is  barred,  232,  236  n. 

See  Mortgage;  Pledge;  Vendor's  Lien. 
LIMITATIONS, 

statutes  of,  whal  are,  1. 

illustrations  of  distinctions  between,  and  restrictory,  1. 

distinction  between,  and  prescription,  1  n. 

history  and  origin  of,  2. 

none  at  common  law,  2,  15. 

except  by  a  fine  and  proclamation,  2  n. 

supplied  by  presumptions  in  certain  cases,  2  n. 

and  by  wager  of  law,  2. 

abuses  from  stale  demands  led  to  adoption  of,  2. 

periods  fixed  from  which  they  ran,  2. 

none  in  Stat.  James  I.  expressly,  as  to  assumpsit,  2  n. 

nature  of,  1  n.,  4. 

now  regarded  as  statutes  of  repose,  1  n.,  4. 

principles  on  which  founded,  5. 

lapse  of  statutory  period  raises  no  presumption  as  to  payment,  5. 

not  suspended,  having  commenced  to  run,  excepl,  6. 

by  death  of  debtor,  6. 

by  injunction,  6  n. 

by  war,  6  n.,  43,  24.2. 

courts  cannot  make  exceptions  to,  6. 

statute  must  be  pleaded   and  when,  7. 

may  be  waited,  7,  41,  51. 

will  not  be  regarded,  unless  pleaded,  7. 

plaintiff  must  reply  to  plea,  7. 

when  lex  loci  prevails,  8. 

when  statute  gives  title  to  land,  lex  rei  sit  a  controls,  8. 

when  statute  gives  and  limits  right,  9. 

when  title  passes  to  chattels  under  statute,  rule,  10. 

constitutionality  of  statutes  of,  4  n.,  n,  12. 

See  Constitutionality. 

affect  only  the  remedy,  1  n.  (a),  11,  20,  21. 

statute  may  be  changed  before  it  has  run  on  existing  claims,  11 
may  shorten  or  lengthen  period  of,  n  n. 

so  by  parties'  agreement,  where,  41  n.,  76  n. 

when  changes  in,  to  be  construed  as  prospective.  11. 

reasonable  time  to  bring  action  in,  when  necessary,  n. 

exception  to  rule  as  to  power  of   legislature  to  change  period   of  limita- 
tion, 11. 

what  statute  governs,  12. 

See  Change  in  Statute;  Foreign  Statute. 

title  to  land  acquired   by,  cannot   be  divested   by  subsequent  change   in 
statute,  14. 

apply  to  assumpsit  upon  simple  contracts  under  Stat.  James  I.,  16-19. 

rule  as  to  mortgages  when  note  is  barred,  21. 

as  to  pledges,  when  debt  is  barred,  21  n. 


INDEX.  823 

LIMITATIONS  —  Continued. 

action  of  assumpsit  for  tort,  not  barred,  because  tort  is,  21. 

in  the  Federal  courts,  27,  40  a  and  n.  (a) 

statute  of,  a  personal  privilege,  41. 

may  be  waived,  7,  41,  51. 

when  his  privies  may  set  it  up,  41. 

cestui  que  tritst  may  set  it  up,  when,  41. 

heirs,  when,  41. 

party  may,  by  agreement,  be  estopped  from  relying  on,  42. 

not  by  mere  equitable  estoppel,  42. 

by  contract,  42-47. 

in  insurance  policies,  42-47. 

what  will  excuse,  42-51. 

who  may  set  up  the  statute,  42-53. 

cannot  be  set  up  against  the  State,  unless,  42-53. 

State  not  bound  by,  52. 

general  government  not  bound    by,  except  when   title  to  debt  is  derived 
from  individual,  52,  254  n.  (a),  258  n.  (a) 

when  stockholder  in  corporation,  52. 

municipal  corporations  and  counties,  subject  to,  53. 

computation  of  time  under  statute  of,  54-57. 

See  Computation  of  Time. 

adoption  of  statute  of,  in  equity,  58-63. 
See  Equity. 

act   to   be  done  after  certain  day,  rule  as    to    whether   last   day    to  be 
excluded  or  included,  54. 

act  to  be  done  by  a  certain  day,  rule  as  to,  56. 

statute  does  not  extinguish  the  debt,  65. 

old  debt,  good  consideration  for  new  promise,  65. 

unqualified  acknowledgment  raises  implied  promise  to  pay,  65. 
LUNATIC.     See  Insane  Person. 

M. 
MANDAMUS, 

to  enforce  a  judgment,  effect,  30  n.  (6) 
MARRIAGE, 

action  to  annul,  barred  by  statute  in  six  years,  in  New  York,  58  n. 
MARRIED  WOMEN, 

within  the  disabilities  of  the  statute,  when,  240. 

coverture  comes  within   the  words  "  persons   under  legal    disabilities,'*' 
237  and  note,  240. 

rule  where  wife  can  sue  or  be  sued,  79  n.  (a),  240. 
See  Disabilities. 
MEMORY, 

legal,  dates  from  time  of  Richard  I.,  2  n. 
MERCHANTS'  ACCOUNTS, 

what  are,  and  statutory  provisions  as  to,  279. 
MINING, 

effect  of  statute  in,  17S  a. 


824  STATUTES   OF   LIMITATION. 

MISTAKE, 

money  paid  by,  statute  runs  from  date  of  payment,  58  n.  152. 

when  equity  will  give  relief   for,  when  statute  has  run,  58    a.,  rig  n.  (a), 
276  n. 

statute  runs  from  date  of,  119  n 

possession  of   wrong  land  by,  effect  of,  263. 

as  to  remedy,  effect,  293, 
MONEY, 

lent  on  deposit  of  title-deeds  recoverable  in  assumpsit,  16. 

cannot,  by  paying  debt  already  barred,  charge  principal  therefor,  145. 

rule  when  there  are  two  or  more,  145. 

paid  for  another,  statute  begins  to  run  on,  when,  147. 

payable  by  instalments,  statute  begins  to  run  on,  when,  151. 

paid  by  mistake,  58  n.,  152,  276  n. 

paid  where  consideration  has  failed,  153. 

had  and  received,  20  n.  (a),  144,   158  n.  (a) 
MONTH, 

meaning  of  lunar  or  calendar,  55,  125  and  n.  (a) 

in  contracts,  how  construed,  125  n. 
MORTGAGES, 

what  English  statute  applies  to,  3  n.  (<?) 

not  barred  because  note  is,  21  n. 

in  New  Hampshire,  note  not  barred  until  mortgage  is,  21  n. 

in  New  York,  a  deficiency  judgment  must  be  perfected  before  statute  can 
run,  30  n.  (a) 

distinction  between  pawn  and   mortgage,  21  n.,  233. 

redemption  of,  when  barred,  58,  222  n.  (it) 

foreclosure  of,  when  barred,  222  n.  (a),  223  n.  (a),  224  n.  (a) 

of  personal  property,  21   n.  (<j),  58. 

remedy  on,  may  be  pursued  in  equity  although  debt  is  barred,  58  n. 

but  not  when  mortgage  is  barred,  58. 

action  to  annul,  barred,  when,  58  n. 

equitable,  action  for  accounting  under,  barred,  when,  59  n. 

recital  of  debt  in,  effect  of,  92. 

presumed  to  have  l.een  paid,  when,  172  n. 

not  oarred  because  note  is,  222. 

rule  that  discharge  of  debt  discharges  mortgage  does  not  apply,  222  n. 
MORTGAGOR  AND  MORTGAGEE, 

relation  of,  to  properly,  221. 

distinction  between  the  debt  and  the  mortgage,  222. 

limitations  fixed  in  the  several  States,  223. 

when  statute  begins  to  run  in  favor  of,  or  against  the  mortgagor,  224. 

right  of  redemption  barred,  when,  225. 

effect  of  acknowledgment  of  mortgagor's  rights  by  mortgagee,  225,  235. 

how  may  be  shown,  and  by  what,  235. 

mortgagee  in  possession  holds  adversely,  when,  225,  235. 

how  it  may  cease  to  be  adverse,  235. 

when  mortgagor  is  in  possession  of  part  of  the  premises,  226. 

liability  of  mortgagee  in  possession,  227,  235. 

Welsh  mortgages,  what  are,  and  operation  of  statute  on,  228. 


INDEX.  825 

MORTGAGOR  AND  MORTGAGEE—  Continued. 

presumption  of  payment,  222  n.,  229. 

pari  payment,  effect  of,  99  n.  (a),  229. 

presumption,  how  rebutted,  222  n.,  229. 

acknowledgment  or  new  promise,  effect  of,  222  n.,  230. 

fraud  on  part  of  mortgagee,  effect  of,  231. 

distinction  between  mortgage  and  lien  for  purchase-money,  232. 

lien  exists  though  debt  is  barred,  232. 
1  pledge  and  mortgage,  distinction  between,  233. 

discharge  of  mortgage  debt,  effect  of,  155  n.,  222,  234. 

absolute  conveyance  treated  as  mortgage,  when,  236. 

may  be  shown  to  have  been  given  as  mortgage  by  parol  evidence,  236. 

mortgage  not  barred  because  debt  is,  222. 

note  is  simple  contract,  and  mortgage  a  specialty,  and  statute  applies  to 
each  distinctively,  222. 

in  some  States,  mortgage  falls  with  the  debt,  222. 

in  New  Hampshire,  note  is  kept  on  foot  during  life  of  mortgage,  223. 

statutory  provisions  relating  to,  223. 

equity  adopts  statute  by  analogy  in  case  of  mortgages,  225. 

morlgagee's  possession,  to  defeat  right  of  mortgagor  to  redeem,  must  be 
adverse,  225. 

when  mortgage  is  payable  by  instalments,  224. 

when  mortgagee  enters  under  agreement  to  pay  himself  from  rents  and 
profits,  statute  does  not  run  against  the  mortgagor,  224. 
MUNICIPAL  ASSESSMENTS, 

presumed  to  be  paid,  when,  172  n. 

treated  as  judgments,  172  n. 
MUNICIPAL  BONDS, 

legislature  no  power  to  shorten  limitation  upon,  when,  II. 
MUNICIPAL  CORPORATIONS, 

statute  may  be  set  up  by  or  against,  53. 

municipal  orders,  must  be   presented   for  payment  before  statute  runs, 
142  n.  (a) 
MUTUAL  ACCOUNTS, 

statutory  provisions  as  to,  277. 

what  are,  278. 

merchants'  accounts,  279. 

stated  accounts,  280. 

N. 
NEGLIGENCE, 

when  statute  begins  to  run  against  actions  for,  179,  200  n.  (a),  289  n.  (l>) 

rule  when  person  is  liable  over  for,  179. 

in  actions  against  public  officers  for,  179. 

in  examining  titles,  179  n.  (a),  289  n. 
NEW  PROMISE, 

offer  operates  as,  when,  68  n. 

conditional,  rule  as  to,  68. 

to  settle,  effect  of,  6S  n. 

how  may  be  established,  6S  n. 


826  STATUTES   OF   LIMITATION. 

NEW  PROMISE—  Continued. 

to  settle,  effect,  6S,  notes,  70  n.,  71  n.,  72  n. 

to  pay,  if  debtor  owes,  but  disclaimer,  effect  of,  68  n. 

must  be  made  before  action  brought,  68  n. 

express,  excludes  all  implied,  6S,  69. 

to  pay  in  specific  articles,  effect  of,  69  n. 

not  to  be  extended  by  inference,  69  n. 

general,  sufficient,  when,  69  n. 

not  to  be  implied  from  acknowledgments,  when,  69. 

from  unqualified  acknowledgment,  may  be  implied,  68,  69. 

to  raise  promise,  acknowledgment  must  be  unqualified,  68  n.,  1. 

explicit,  68  n.,  1. 

to  pay  all  notes  produced,  but  denying  that  any  exist,  70  n. 

ta  attend  to  debt,  effect  of,  70  n.,  72. 

to  examine  and  adjust,  70  n. 

to  pay  when  able,  70  n. 

not  to  plead  the  statute,  effect  of,  41  n.  (a),  42  n.  (a),  76,  276  n. 

conditional,  effect  of,  77. 

condition  must  be  accepted,  77,  notes. 

to  pay  when  able,  77. 

to  pay  as  soon  as  possible,  77  n. 

to  pay  as  soon  as  the  debtor  gets  the  money,  77. 

as  soon  as  money  can  be  obtained  from  a  certain  source,  77. 

prove  it  by  A.  and  I  will  pay,  77. 

to  pay  if  a  certain  business  does  not  fail,  77. 

promise  to  pay  if  interest  is  thrown  off,  effect  of,  77  n. 

to  pay  in  Confederate  money,  77. 

to  pay  "  if  I  can,"  77. 

hope  to  pay,  77  n.,  78. 

to  pay  less  than  is  due,  78. 

to  give  a  certain  article,  78. 

made  on  Sunday,  effect  of,  81. 

See  Acknowledgment. 
NEW  PROMISE  IN  WRITING, 

what  sufficient.  77  n.,  82-95. 

effect  of  statutes  requiring,  84. 

must  clearly  refer  to  debt  in  suit,  86. 

distinction  between  absolute  and  qualified,  S7. 

amount  need  not  be  stated,  88. 

direction  in  will  to  pay,  90. 

debts  due  from  corporations,  who  may  make,  91. 

entry  of  debt  in  deeds,  schedules,  etc.,  92. 

question  of  sufficiency  of,  for  the  court,  93. 

must  be  signed  by  the  debtor,  94. 

must  bind  debtor  personally,  95. 

conditional,  effect  of,  95. 

See  Acknowledgment. 
NOTES, 

do  not  discharge  debt  for  which  given,  unless,  16  n. 

under  seal,  specialty  debts,  29. 


INDEX.  827 

NOTES  —  Continued. 

surrender  and  renewal  of,  effect,  35  n.  (a) 

payable  in  one  "  month,"  calendar  month  is  treated  as  intended,  55. 

executed  for  debt,  but  not  accepted  by  creditor,  will  not  renew  the  debt,  85. 

given  up  to  debtor,  effect  of,  85  n. 

part  payment  by,  effect  of,  114. 

indorsements  on,  effect  of,  115. 

evidence  of  part  payment  of,  115  n.,  116. 

entitled  to  grace,  rule  as  to  when  statute  begins  to  run,  118  n. 

when  given  without  interest,  but   separate  instrument  is  executed  agree- 
ing to  pay,  118  n. 

payable  in  labor,  statute  begins  to  run  on,  when,  119  n. 

bill  of  exchange  accepted  after  maturity,  statute  begins  to  run,  when,  131. 

payable  by  instalments,  statute  begins  to  run,  when,  126. 

when  demand  is  necessary  to  put  statute  in  motion,  124,  125. 

bills  payable  on  "  sight,"  125. 

payable  "  any  time  within  two  years,"  125. 

in  specific  articles,  128. 

presentment  of  bill  for  acceptance,  etc.,  rules  relating  to,  125  n. 

subject  to  assessment,  129. 

bills  payable  at  particular  place,  130. 

accepted  after  maturity,  131. 

subject  to  grace,  132. 

payable  upon  happening  of  a  contingency,  133. 

action  against  indorser,  134. 

against  acceptor,  135. 

against  drawer,  136. 

goods  sold  on  credit  to  be  paid  by  note,  137. 

bank  bills,  138. 

witne=sed,  rules  relating  to,  139. 

under  seal,  presumed  to  have  been  paid,  when,  172. 

though  secured  by  mortgage,  still  remains  a  simple  contract,  222. 

barred  at  law,  mortgage  given  to  secure,  still  remains  enforceable,  222. 
See  Check;  Indorsement;  Payment, 
NOTICE, 

when  required,  effect  on  the  statute,  1  n.  (a) 
NUISANCES, 

every  continuance  of,  gives  new  cause  of  action,  180. 

rule,  when  of  a  permanent  character,  180. 

prescription  for.  181,  182. 
NULLUM    TEMP  US  OCCURRIT  REG/, 

municipal  corporations  not  within  the  maxim,  53. 

applies  to  general  and  State  government,  unless,  52,  254  n.  (a),  258  n.  (17) 
See  Government;  Limitations;  State. 

O. 

OBLIGATION, 

of  contract,  what  is,  n. 
OFFER, 

to  pay  in  specific  property,  effect  of,  75. 


828  STATUTES   OF   LIMITATION. 

OFFICIAL  BONDS, 

effect  of  statute  upon,  52  and  n.  (a) 
OFFSET.     See  Set-off. 
OPTION, 

effect  on  statute,  118  n.(a) 
ORDERS, 

town  or  city,  within  statute,  19. 
ORDERS  OF  COURT.     See  Court. 

P. 

PARTIES, 

new,  cited  in,  statute  runs  from  time  when  cited,  7  n.,  294. 
PARTNERS, 

action  of  account  by,  24. 

assumpsit  lies  between,  to  recover  balance,  when,  35. 

what  statute  applies,  35. 

payment  of  dividend  under  commission  in  bankruptcy  against  one,  effect 
of  upon  statute  as  to  others,  58  n. 

equity  will   not  settle   rights  between,  where  party   has   been   guilty  of 
laches,  60,  notes. 

trustees  for  each  other,  201. 

fraud  of  one,  effect,  158  n.  (a) 

effect  of  acknowledgment  by  one,  171,  211. 
PART  PAYMENT, 

indorsement  upon  note,  not  sufficient  evidence  of,  68  n. 

goods  delivered,  to  be  sold  and  applied  as,  effect  of,  68  n. 

payment  of  interest  is,  68  n. 

of  principal,  does  not  revive  interest,  68  n. 

is  acknowledgment  of  whole  debt,  68  n.,  97  n.  (a) 

in  specific  property,  effect  of,  75. 

effect  of,  96. 

provisions  of  9  Geo.  IV.,  96. 

rule  adopted  under,  96. 

of  principal  or  interest,  96,  105. 

raises  implied  promise  to  pay  balance,  96  n. 

how  must  be  made,  97. 

intended  as  in  full,  is  not,  97. 

must  be  on  account  of  the  debt  in  suit,  97 

principle  upon  which  it  removes  the  statute  bar,  97  n.,  104. 

when  not  operative  as,  97. 

essential  requisites  of,  97  n.,  104. 

by  whom  must  be  made,  97  n.,  99-101. 

general  payment  on  account  of  greater  debt,  is,  when,  97. 

must  be  unaccompanied  by  any  words  which   repel  admission   that  more 
is  due,  98. 

naked  payment,  effect  of,  98,  100,  105. 

when  there  are  two  accounts,  effect  of,  98. 

how  intention  as  to  application  of,  mav  be  shown,  98. 

burden  of  establishing,  is  upon  plaintiff,  98. 

by  representative  of  debtor,  what  must  be  shown,  99,  101,  102. 


INDEX.  829 

PART  PAYMENT—  Continued. 

must  be  voluntary  and  authorized,  101. 

by  assignee,  effect  of,  101. 

of  judgment,  101. 

of  costs  on  judgment,  97  n. 

of  dividend  under  order  of  court,  101. 

compulsory,  effect  of,  ior. 

by  administrator  under  decree  of  court,  101. 

by  husband,  for  wife,  285  n.  (a) 

by  third  person,  who  has  agreed  to  pay  the  debt,  101. 

by  sale  of  collaterals,  by  creditor,  effect  of,  ior. 

must  be  made  to  creditor  or  his  authorized  agent,  103. 

ratification  of  payment  to  agent,  effect  of,  103. 

before  statute  has  run,  effect  of,  105. 

on  indeterminate  debt,  105. 

rebuttal  of  inference  of  promise  from,  106. 

on  debt  payable  by  instalments,  effect  of,  105  n. 

payment  into  court,  effect  of,  107. 

identity  of  debt  must  be  established,  108. 

questions  for  jury,  relating  to,  109. 

appropriation  of,  general  rules  relating  to,  no. 

appropriation  where  there  are  several  distinct  debts,  no. 

right  of  debtor  to  direct,  no. 

when  creditor  may  apply,  no. 

when  court  will  apply  it.  no, 

when  may  be  applied  to  debt  barred,  no. 

when  may  be  applied  to  take  several  debts  out  of  statute,  no. 

oral  proof  of,  in. 

need  not  be  in  money,  112. 

test  as  to  what  amounts  to,  113. 

by  bill  or  note,  114. 

indorsements  of,  on  notes,  etc.,  effect  of,  115. 

evidence  of,  115,  116. 
PATENTS, 

for  inventions,  application  of  statute  to,  40  a. 

for  land,  40  a,  n.  (a),  52  n.  (6) 
PAWN.     See  Pledge. 
PAWNOR, 

right  of,  to  redeem  pledge,  22  n. 

executor  of,  may  redeem,  22  n. 
PAYMENT, 

plea  of,  as  to  award,  15  n.  (a) 

by  mistake,  statute  runs  upon,  from  date  of,  58  n. 

equity  will  not  give  relief  for,  after  statute  has  run,  58  n. 

by  obligor  does  not  affect  guarantor,  41  n.  (a) 

indorsement  of,  upon  note,  not  sufficient  evidence  of,  68  n.,  115. 

goods  delivered  to  be  sold  and  applied  on  debt,  effect  of,  68  n. 

of  interest,  effect  of,  68  n. 

of  principal  does  not  revive  interest,  68  n. 

of  money  into  court  does  not  revive  debt,  68  n. 


830  STATUTES   OF    LIMITATION. 

PAYMENT  —  Continued. 

statement  that  debt  has  been  paid  in  certain  way,  not  acknowledgment 
of,  though  it  was  not  so  paid,  68  n. 

appropriation  of,  no. 

rules  relating  to,  no. 

See  Part  Payment. 
PENALTY, 

given  by  statute,  debt  lies  for,  when,  2j. 
PLEADINGS, 

statute  must  be  pleaded  by  debtor,  7. 

by  demurrer  or  answer,  7  and  n.  (a) 

diligence  required,  7. 

in  criminal  cases,  2S  n.  (a) 

plaintiff  must  reply,  7. 

when  new  declaration  is  filed,  7  n. 

when  new  parties  cited  in,  7  n. 

when  declaration  is  amended  so  as  to  introduce  new  matter,  7  n 

when  court  may  take  notice  of  statute  without  plea,  7  n. 

statute  must  be  replied  to  counterclaim,  7  n. 

not  to  set-off,  7  n. 

when  courts  bound  to  notice,  7  n. 

statute  may  be  set  up  by  way  of  answer,  when,  7  n. 

when  statute  may  be  made  available  by  demurrer  7. 

how  new  promise,  etc.,  made  available  by,  81. 
PLEDGE, 

of  personal  property,  lien  upon,  not  lost  because  debt  is  barred,  21,  22. 

distinction  between,  and  mortgage,  21  n.,  22  n.,  233. 

how  lien  is  created,  21  n. 

when  may  be  retained  for  future  loans,  21  n. 

when  lien  cannot  be  acquired  under,  21  n. 

property  excepted  from  the  rule,  21  n. 

of  property  obtained  by   false   pretences,  no  lien    acquired  upon,  21  n.; 
see  183  n. 

lapse  of  statutory  period  does  not  give  pledgee  title  to,  22. 

pledgee  may  sell,  22. 

rule  when  he  retains  or  loses  it,  22,  282  n.  (a) 

rule  when  no  time  for  redemption  is  fixed,  22. 

executor  of  pledgee  bound  to  deliveron  tenderof  payment  by  pledgor,  22. 

ric;ht  to  redeem  descends  to  pawnor's  representatives,  22  n. 
POSSESSION, 

title  by.     See  Adverse  Possession. 
PRESCRIPTION, 

distinction  between,  and  limitations.  1  n. 

what  requisite  to  acquire  rights  by.  182. 

action  barred  by,  when,  181. 
PRESUMPTIONS, 

I  1  trirn-  of,  applied  as  limitation  in  certain  cases  at  common  law.  2  n. 

appli'-l  under  statutes,  2  n. 

of  payment  nol  raised  by  [apse  of  statutory  period,  5. 

as  to  payments  raised  by  statutory  provisions,  21. 


INDEX.  83I 

PRESUMPTIONS  —  Continued. 

of  payment  of  legacy  cannot  arise,  when,  40. 

of  grant  from  State,  when  arises,  52. 

that  acknowledgment  relates  to  certain  debt,  raised,  when,  68. 

difference  in  doctrine,  68  n. 

not  all  have  same  force,  172  n.  (a) 

as  to  payment  of  specialties  raised  by  lapse  of  time,  172  n. 

equity  acts  in  analogy  to  the  statute,  58,  172  n.,  229. 

statutory  provisions  as  to,  172. 

of  payment,  cannot  be  rebutted  by  mere  proof  of  non-payment,  222  n. 

of  mortgage,  admission  by  mortgagor,  rebuts,  222  n. 

that  mortgage  is  paid,  arises  when  and  from  what,  229. 

how  rebutted,  229 

that  mortgage  is  paid,  arises  when,  229. 

how  overcome,  229  n. 

acknowledgment  or  new  promise  by  mortgagor,  effect  of,  230. 

by  mortgagee  in  possession,  235. 
PRINCIPAL, 

part  payment  of,  effect  of,  as  to  interest,  105. 
PRINCIPAL  DEBT, 

payment  of,  does  not  revive  interest,  68  n. 
PROBATE  COURT, 

power  of,  to  direct  sale  of  intestate's  land,  within  equity  of  statute,  58  n. 

statute  of  limitation  as  to  matters  in,  6  n.  (a) 
PROCESS.     See  Judicial  Process. 
PROMISE  TO  MARRY, 

statute  begins  to  run  on,  when,  159. 

See  Notes. 
PROMISSORY  NOTES.     See  Notes. 
PURCHASER, 

of  property  for  benefit  of  another,  holds  as  trustee,  220. 

Q 

QUESTIONS  FOR  THE  JURY.     See  Jury. 
QUIET  ENJOYMENT, 

statute  begins  to  run  on  covenants  for,  when,  173. 

how  broken,  173  and  n.  (a) 

R. 
REAL  ESTATE, 

statute  as  to,  21  n.  (a) 

charge  on,  statute  applicable  to,  and  effect,  3  n.  (a),  16  n.  (6),  32  n.  (a) 
See  Adverse  Possession;  Mortgages;  Specialties. 
REBELLION, 

statute  suspended  during,  6,  242. 

grounds  on  which  predicated,  6  n. 
RECEIVER, 

whether  statute  runs  against,  46  and  n.  (a),  149  n.  (a),  243  n.  (a) 

cannot  bind  debtor  by  acknowledgment,  24.3  n.  (a) 


832  STATUTES    OF    LIMITATION. 

RECITALS, 

of  debt  in  deeds,  etc.,  effect  of,  80. 
RECOGNIZANCES, 

presumed  to  have  been  paid,  when,  172. 
RECORD, 

action  to  restore,  barred,  5S  n. 
RECOUPMENT.     See  Set-off. 
REDEMPTION, 

of  mortgage,  statute  quiets    right  of   person  having   right  of,  though  not 
part}7  to  foreclosure,  58,  225. 

of  personal  property  pledged,  58. 
REFORMATION  OF  CONTRACT, 

action  for.     See  Contract. 
REMAINDER, 

statute  does  not  run  against  owner  of,  259. 

when  must  enter,  259  n. 

how  entry  must  be  made,  259  n. 

effect  on,  of  paying  interest,  229  n.  {a) 
REMEDIES, 

choice  of,  between  covenant  and  assumpsit,  when,  35. 

slatute  applies  according  to  remedy  employed,  1  n.  (a),  58  n. 

when   debt  or  assumpsit  will   lie,  statute   applicable    to    remedy  chosen 
applies,  58. 

equity  will  supply  in  certain  cases  when  barred  at  law,  63. 
RENEWALS, 

effect  on  statute,  86  n.  {a) 
RENT, 

specialty  debt,  when,  30  n.  (a),  32,  33. 

meaning  of,  32  n.  (a) 
RESULTING  TRUSTS      See  Trusts. 
REVERSIONER.     See  Remainder. 
REWARDS, 

debt  lies  for,  when,  25. 
RUNNING  OF  STATUTE, 

not  suspended,  except,  6. 

by  death,  6  and  note, 
by  injunction,  6  n.,  243. 
by  war,  6  n.,  242. 

rule  in  this  country  as  to  effect  of  war,  6,  242. 
intervening  disability,  6. 

does  not  begin,  until  person  to  sue,  6  n. 

when  begins,  117. 

must  be  party  to  sue  or  be  sued,  117. 

demand,  when  necessary  to  start,  118. 

starts  from  first  demand,  and  cannot  be  started  afresh  by  a  second,  118  n. 

rule:  in  equity,  where  demand  is  unreasonably  delayed,  118. 

when  courts  will  presume  a  demand,  118. 

rule  when    demand    is   delayed    in  obedience  to  an   implied    provision    of 
ihe  contra*  1,  1 18. 

demands  payable  in  specific  articles,  118  n. 


INDEX.  833 

.RUNNING  OF  STATUTE  —  Continued. 

rule  when  note  is  payable  at  sight  or  on  demand,  118,  124. 

rule  when  payable  after  sight  or  demand,  118,  125. 

when  note  has  no  date,  118  n. 

note  payable  "  when  called  for,"  118. 

note  payable  one  day  after  date,  124  n. 

note  payable  one  day  after  a  certain  event,  118. 

certificate  of  deposit  payable  on  call,  118  n. 

grace,  notes  or  bills  entitled  to,  118  n. 

when  there  is  a  condition  precedent,  119. 

must  be  a  full  and  perfect  right  of  action,  119  n. 

for  work,  from  time  of  its  completion,  when,  119  n.,  120. 

for  work  to  be  compensated  by  provision  in  testator's  will,  119  n. 

promise  to  pay  balance,  119  n. 

upon  subscriptions  to  stock  payable  by  assessment,  119  n. 

balance  arising  from  sale  of  collaterals,  119  n,  123  n. 

debt  to  be  paid  upon  certain  conditions,  119. 

debt  to  be  paid  from  the  avails  of  a  certain  sale  or  business,  119. 

or  after  the  happening  of  a  certain  event,  119. 

or  the  accomplishment  of  a  certain  result,  119. 

for  reward  offered  for  arrest  and  conviction  of  persons  charged  with  a 

crime,  119. 
on  judgment  confessed,  for  sum  to  be  assessed  by  clerk,  119  n. 
on  note  payable  in  labor,  119  n. 

on  promise  to  pay  when  amount  is  ascertained,  119. 
where  attorney  takes  debt  to  collect,  upon  shares,  119. 
against  claim  for  services  of  attorney,  121. 

where  attorney  has  been  guilty  of  fraud,  misfeasance,  or  malfeasance,  122. 
services,  when  statute  begins  to  run  upon  claim  for,  120. 
rule  when  employer  dies  before  the  services  are  completed,  120. 
rule  when  contract  is  entire,  120. 
in  case  of  agents,  factors,  etc.,  123. 

See  Agents. 
as  to  notes,  bills,  etc.,  124-140. 

See  Notes. 
on  coupons  and  interest  warrants,  127. 
-on  note  payable  "  any  time  within  two  years,"  124  n. 
presentment  of  bill  for  acceptance,  etc.,  rules  relating  to,  125  n. 
suspension  of  statute  by  agreement  of  parties,  137. 
against  acceptor  of  bills,  135. 
against  indorser,  134,  145. 
against  drawer,  136. 
bank  bills,  138. 
checks,   140. 

on  contracts,  express  or  implied,  141. 
on  deposits  and  on  certificates  of  deposit,  142. 
-money  received  by  one  for  use  of  another,  142  a. 
money  misappropriated,  143. 
on  forged  or  invalid  instruments,  143  a. 
money  had  and  received,  144. 
TSTATS.  OF  LIM. —  ,3] 


834  STATUTES   OF   LIMITATION. 

RUNNING  OF  STATUTE  —  Continued. 

against  sureties,  145. 

on  an  implied  warranty,  144  a. 

for  or  against  guarantors,  146. 

for  money  paid  for  another,  147. 

against  actions  under  enabling  acts,  148. 

against  stockholders  of  corporations,  149. 

stock  subscriptions,  150. 

money  payable  by  instalments,  151. 

mistake,  money  paid  by,  152. 

on  over-payments,  152. 

failure  of  consideration,  153. 

against  sheriffs  for  breach  of  duty,  154. 

fraudulent  representations  in  sale  of  property,  155. 

when  leave  of  court  is  necessary  to  sue,  156. 

orders  of  court,  157. 

fraud,  property  obtained  by,  158. 

promise  to  marry,  159. 

for  money  paid  under  void  contracts,  160. 

against  heirs  in  certain  cases,  161. 

sureties  on  administrator's  bonds,  162. 

against  guardians,  t63. 

assessments,  tases,  etc.,  164. 

agreement  to  pay  incumbrances    165. 

in  actions  "  not  herein  enumerated,"  166,  179  n.  (a) 

for  advances  upon  property,  167. 

for  usurious  interest,  168. 

tenants  in  common  of  property,  169. 

when  the  law  gives  a  lien  for  property  sold,  170. 

against  co-purchasers,  co-sureties,  etc.,  171. 

on  specialties,  172-176. 

See  Specialties. 
torts,  quasi  e  contractu,  177-187. 

See  Torts. 
against  executors  and  administrators,  188-199. 

See  Executors  and  Administrators. 
against  trusts  and  trustees,  200-220. 

See  Trusts  and  Trustees. 
against  mortgagor  and  mortgagee,  221-236. 

See  Mortgagors  and  Mortgagees. 

S. 
SABRATH, 

promise  or  acknowledgment  made  on,  effect  of,  81. 
SALES, 

upon  order,  effect  of  statute,  20  n. 

fraudulent  representations  in,  statute  oegins  to  run  on,  when,  155. 
SCHED1   1.1 

insertion  of  debt  in,  effect  of,  92. 

Sec  Acknowledgment. 


INDEX.  835 

SEALED  INSTRUMENTS, 
are  specialties,  29. 

when  party  may  maintain  assumpsit  on,  ig. 
SECURITIES, 

two  for  same  debt,  party  may  pursue  one,  though  the  other  is  barred,  58  n. 
to  be  compensated  by  provision  in  employer's  will,  statute  does  not  begin 
to  run  until  his  death,  119  n. 
SEDUCTION, 

statute  begins  to  run  in  actions  for,  when,  186. 
SERVICES, 

statute  begins  to  run  upon  contract  for,  when,  120  and  n.  (a) 
SET-OFF, 

statute  may  be  relied  on  against,  without  plea,  7  n. 

statute  applies  to,  19. 

executor,  elc,  may,  debt  barred,  due  from  legatee,  198. 

statute  begins  to  run  against,  when,  281-284. 

available  as  simultaneous  cross-action,  281. 

bringing   of  action   suspends   the    statute    as  to  all   of   the   defendant's 

demands  which  may  be  set  up  in  reduction  of  the  principal  debt,  282 
recoupment,  when,  action  barred,  282. 

executor  may  deduct  debt  due  from  heir,  although  barred,  283. 
statutory  provisions  as  to,  284. 
SETTLE, 

promise  to,  does  not  revive  debt,  68  n. 
promise  to,  when  sufficient,  68  n. 
promise  to,  effect  of,  70  n.,  72. 

See  Compromise. 
SHERIFF, 

actions  against,  within  statute,  19. 

statute  begins  to  run  against,  when,  for  money  collected  on  execution,  154. 
for  money  collected  on  foreclosure  proceedings,  154. 
for  releasing  property  from  attachment  or  levy,  154. 
for  an  escape,  154. 
for  an  insufficient  return,  154. 
for  attaching  insufficient  property,  154. 
for  taking  insufficient  bail,  154. 
for  taking  insufficient  receiptors,  154. 

for    failure   to    return   property  to  debtor  after  attachment  is  dis- 
solved, 154. 
SIMPLE  CONTRACTS, 

no  limitation  of,  at  common  law,  15. 

embraced  in  Stat.  James  I.,  15. 

charged  on  land,  3  n.   (a),  16  n.  (d),  32  N.  (a) 

deposits  with  bankers,  17. 

special  deposits,  18. 

assumpsit  lies  upon,  20. 

lies  for  tort,  when,  21. 

pledges,  pledgee  does  not  acquire  title  to,  by  laps-  of  time,  22,  233. 

clauses  in  statutes  embracing,  23. 

account,  24. 


836  STATUTES   OF    LIMITATION. 

SIMPLE  CONTRACTS—  Continued. 

debt,  25. 

covenant,  26. 

suits  in  admiralty,  27. 

See  Contracts. 
SIGNATURE, 

acknowledgment  by,  when  to  be  personal,  82  n.  (a) 
SOCIETIES, 

funds  of,  vested  in  trustees,  statute  runs  on,  when,  217. 
SPECIAL  DEPOSIT.     See  Deposit. 
SPECIALTIES, 

covenant,  usual  remedy  upon,  26. 

debt  lies  for,  when,  25. 

all  instruments  under  seal  are,  29,  172. 

debts  of  record,  29. 

presumption  as  to  payment  of,  raised  by  lapse  of  time,  29  n. 

what  are,  29-40. 

judgments,  30. 

rent,  actions  for,  32. 

avowry  for  rent,  33. 

foreign  judgments,  34. 

mixed  claims,  35. 

instances  of,  35. 

liability  created  by  statute,  36. 

statutory  provisions  relating  to,  31,  37. 

when  concurrent  remedy  is  given  for,  38. 

test  as  to  whether  specialty  or  not,  39. 

action  for  distributive  share  of  estate,  40. 

patents,  application  of  statute  to,  40  a. 

notes  under  seal,  29,  172. 

deeds,  leases,  bonds,  29. 

statute,  rights  created  by,  38. 

remedies  upon,  may  be  in  assumpsit,  when,  35. 

distinction  between  action  founded  upon,  and  one  which  is  only  an  inci- 
dent of,  35. 

Special  statutory  provisions  relating  to,  37. 

test  for  determining  whether  statute  creates  specialty  debt  or  not,  39. 

statute  begins  to  run  on,  when,  172. 

presumption  as  to  pavment  of,  172  n. 

covenants,  for  quiet  enjoyment,  173. 

bonds,  29,  172  n.,  175. 

covenants  of  warranty,  173  n.,  174. 

legacies,  presumption  as  to  payment  of,  172. 

recognizances,  presumption  as  to  payment  of,  172. 

ground  rent,  presumption  as  to  payment  of,  172. 

Hen  by  law,  statute  begins  to  run  on,  when,  170. 
SPECIFIC  PERFORMANCE, 

barred  when  under  New  York  statute,  140. 

generally,  [4 1 . 

right  of,  barred,  when,  225. 


INDEX.  837 

SPECIFIC   PERFORMANCE  —  Continued. 

what  acts  of  mortgagee  keep  the  right  on  foot.  222  n.,  225,  229. 

enforcing  by,  a  title  gained  by  adverse  possession,  260  n.  (a) 
See  Mortgagee  and  Mortgagor. 
SPECIFIC  PROPERTY, 

offer  to  pay  in,  effect  of,  75. 

notes  payable  in,  statute  begins  to  run,  when,  T2S. 
STALE  DEMANDS, 

wager  of  law  operated  as  check  upon,  2. 

abuses  from,  led  to  adoption  of  statutes  of  limitation,  2. 

discouraged  in  admiralty,  27. 

may  be  regarded  as,  though  statute  h's  not  run  at  law,  58,  59. 

reasonable  excuse  for  delay  saves  claim  from  being  treated  as,  59. 

equity  discourages,  60. 
STATE, 

statute  does  not  apply  against,  unless,  52. 

title  to  lands  of,  not  acquired  by  adverse  possession,  52  n.,  254  n.  (a),  258 
n.  (a) 

controversies  between  States,  52  n. 

as  to  effect  of  nullum  tempus  act  in  England,  see  52  and  note. 

may  avail  itself  of  statute,  52  n. 

when  grant  from,  may  be  presumed,  52. 

when  it  has  derivative  title  to  debt,  rule,  52  n. 

rule  as  to,  in  England,  see  Lambert  v.  Taylor,  52  n. 

laches  not  imputable  to,  52. 

cannot  impose  limitations  against  Ihe  general  government,  52  n. 

when  it  sues  jointly  with  an  individual,  52  n. 

debts  due  to,  not  within  the  statute,  52. 

actions  by,  to  recover  lands,  not  barred,  52. 

statute  may  be  set  up  against,  when  it  seeks  to  enforce  debt  due  to  cor- 
poration or  individual,  52. 
STATED  ACCOUNTS, 

what  are,  280. 

effect  of,  280. 
STATUTE  OF  FRAUDS, 

contracts  void  under,  statute  begins  to  run  on,  when,  160. 
STATUTE  JAMES  I., 

general  limitations  provided  by,  2  n. 

did  not  expressly  embrace  assumpsit,  2  n. 
STATUTES, 

rights  of  action  founded  upon,  specialty  debts,  19. 

not  within  statute  of  James  I.,  19. 

actions  indirectly  founded  on,  19. 

liability  created  by,  is  in  nature  of  specialty,  when,  36. 

subject  to  statute  applicable  to  specialties,  37 

concurrent  remedies  given  by,  38. 

rights  given  by,  specialties,  38,  39. 

test  for  determining  whether  specialties  or  not,  39. 

21  James  I.,  p.  794. 


g3g  STATUTES   OF   LIMITATION. 

STATUTES—  Continued. 
4  Anne,  p.  794. 
9  George  III.,  p.  795- 
9  George  IV.,  p.  795 
3*&  4  Wm.  IV.,  p.  797- 
3  &  4  Wm.  IV.  (as  to  specialties),  p.  798- 
7  Wm.  IV.  &  1  Vict,  (mortgages),  p.  798- 
16  &  17  Vict.,  p.  798. 

23  &  24  Vict.,  p.  798- 

24  &  25  Vict.,  p.  799- 

37  &  38  Vict,  (real  property),  p.  799- 

38  &  39  Vict.,  p.  799- 

39  &  40  Vict,  {Nullum  Tempus  Act),  p.  799- 
56  &  57  Vict.  p.  799- 

Alabama,  p.  695. 
Alaska,  p.  697. 
Arkansas,  p.  699. 
Arizona  Ter.,  p.  697. 
California,  p.  700. 
Colorado,  p.  702. 
Connecticut,  p.  704. 
Delaware,  p.  706. 
Florida,  p.  708. 
Georgia,  p.  709. 

Hawaiian  Islands,  p.  710. 

Idaho,  p.  711. 

Illinois,  p.  713. 

Indiana,  p.  715. 

Iowa,  p.  717. 

Kansas,  p.  7*9- 

Kentucky,  p.  721. 

Louisiana,  p.  725. 

Maine,  p.  728. 

Maryland,  p.  731- 

Massachusetts,  p.  732. 

Michigan,  p.  735. 

Minnesota,  p.  738. 

Mississippi,  p.  739. 

Missouri,  p.  742. 

Montana,  p.  744. 

Nebraska,  p.  747. 

Nevada,  p.  748. 

New  Hampshire,  p.  751. 

New  Jersey,  p.  751- 
New  Mexico,  p.  753. 
New  York,  p.  754 
North  Carolina,  p.  760. 
North   Dakota,  p.  703- 
'  >hio,  p.  !<><>■ 
Oklahoma  Tcr.,  p.  767. 


INDEX.  839 

STATUTES  —  Continued. 
Oregon,  p.  768. 
Pennsylvania,  p.  770. 
Rhode  Island,  p.  772. 
South  Carolina,  p.  773. 
South  Dakota    p.  775 
Tennessee,  p.  776. 
Texas,  p    778. 
United  Stales,  p.  695. 
Utah  Ter.,  p.  780 
Vermont,   p.  783. 
Virginia,  p.  784. 
Washington,  p.  786. 
Wesi  Virginia,  p.  788. 
Wisconsin,  p.  789. 
Wyoming,  p.  792. 

STATUTES  OF  LIMITATION, 

what  are,    1. 

history  and  origin  of,  2, 

nature  of,  4. 

principles  on  which  founded,  5. 

general  rules  applicable  to,  6-8. 

having  commenced  to  run  will  not  stop,  6. 

must  be  pleaded  by  debtor,  7. 

part  of  lex  fori,  8. 

distinction  when  statute  gives  and  limits  remedy,  9. 

when  title  to  property  is  given  by  possession,  10. 

constitutionality  of,  11. 

what,  governs,  12. 

effect  of  change  of,  as  to  crimes,  13. 

effect  of.  on  title  to  land,  14. 

personal  privilege,  41. 

limitations  by  contract,  42. 

effect  of  war  on  conditions,  43. 

waiver  of  limitation,   51. 

against  whom  may  be  enforced,   52. 

State  not  bound  by,  unless,  52. 

municipal  corporations  within,  53. 

computation  of  time  under. 
See  Computation  of  Time;  Equitable  Actions;  Running  of  Statute. 

promise  not  to  plead,  effect  of,  41  n.  (a),  76,  276  n. 
See  Limitations. 
STOCK, 

subscriptions,  when  statute  begins  to  run  on,  150. 

when  subject  to  call,  150. 

when  subject  to  assessment,  150. 

when  no  time  for  payment  is  fixed,  150. 

where  notes  are  given  for,  payable  upon  notice,  150. 

payable  by  instalments  at  certain  definite  periods,  150. 


84O  STATUTES    OF    LIMITATION. 

STOCKHOLDERS, 

of  corporations,  actions  against,  when  the  stalule  begins  to  run  on,  58  n^, 
149. 
SUBROGATION. 

right  of,  when  merely  incidental,  does  not  affect  I  he  statute,  145  n.  (a) 
SURETIES, 

on  official  bonds  to  State  cannot  rely  on  statute,  unless,  52. 

when  statute  begins  to  run  for  or  against.  145,  289  n. 

remedy  of,  146. 

action  by,  on  what  predicated,  145  n. 

when  less  than  the  debt  is  paid  and  accepted  in  full,  145  n. 

when  note  is  given  by,  for  the  debt,  145  n. 

judgment  against,  for  the  debt  does  not  create  right  of  action,  145. 

rights  of,  to  be  subrogated  to  debtor's  rights,  145. 

when  debt  is  payable  by  instalments,  145. 

when  mortgage  to  secure  is  given,  145. 

cannot  bind  principal  by  payment  of  debt  barred  by  statute,  145. 

when  debt  is  paid  before  it  is  due,  145 

T. 
TACKING, 

of  disabilities,  6,  251. 

of  different  possessions,  271. 
TAXES, 

statute  runs  against,  when,  53  n.  (a),  164. 

payment  of,  does  not  prove  adverse  possession  apart  from  statute,  258  n.  (6) 
TENANTS  AT  WILL  OR  AT  SUFFERANCE, 

effect  of  their  occupancy,  265   n.  (a) 
TENANTS  IN  COMMON, 

remedy  between,  in  account,  24. 

statute  begins  to  run  between,  when,  169,  255  n.  (<z).  206,  276. 
TENTERDEN'S  (LORD)  ACT,  82. 
TIME. 

when  statute  begins  to  run.     See  Running  of  Statute. 

computation  of.     See  Computation  of  Time. 

legislature  may  change  as  to  limitation,  when    II. 
TITLE  BY  POSSESSION.     See  Adverse  Possession. 
TORTS, 

die  with  the  person  at  common  law,  2. 

assumpsit   lies  for,  when,  21. 

party  may  waive,  when,  60,  66  n. 

when  waived,  assumpsit  may  be  brought  though  an  action  for  the  tort  is 
barred,  13. 

acknowledgment  of,  does  not  revive,  66  n.  (a) 

acknowledgment  of  an  indebtedness  arising  from,  not  sufficient,  66. 

quasi  r  r»>itnirtit,  statute  begins  to  run  on,  when,  177. 

for  consequential  injury,  178. 

for  negligence,   \7<). 

for  nuisances,  180. 


INDEX.  841 

TORTS—  Continued. 

for  trover  or  conversion,  183. 

for  trespass,  assault,  etc.,  1S4. 

for  ciim.  con.,  185. 

for  seduction,  186. 

for  failure  to  perform  duty  imposed  by  statute,  187. 

See  Fraud;  Negligence;  Nuisances;  Trespass. 
TOWN  ORDERS.     See  Orders. 
TOWNS. 

subject  to  statute,  53. 

vote  at  meeting  of,   "  to  settle   dispute  "    not  sufficient  acknowledgment 
of  claim  to  remove  statute,  68  n. 
TRADE- MARK, 

laches  in  cases  of,  58  n.  {a) 

TRESPASS, 

statute  begins  to  run  in  actions  for,  when,  178  n.,  184. 

TRESPASS  ON  THE  CASE, 

embraced  assumpsit  under  Stat.  James  I.,  2  n. 
TROVER, 

statute  begins  to  run,  when,  21,  183. 

what  amounts  to  conversion,  183  n. 

rule  when  conversion  not  known,  1S3  n. 

when  demand  is  necessary,  183. 
TRUSTEE.     See  Trusts. 
TRUSTS, 

barred,  when,  19. 

constructive,  subject  to  statute,  58  n.  (a) 

equity  will  not  aid,  when  statute  has  run,  58  n. 

continuing,  not  within  statute,  58. 

statute  does  not  run  on  express,  200  and  notes. 

express,  what  are,  200  n.,  20J,  215. 

resulting  or  constructive,  what  are,  215. 

possession  of,  inures  to  cestui  que  trust,  58  n.,  200. 

cestui  que  trust,  in  possession,  tenant  at  will  to  trustee,  200  n.,  200  n.    201. 

cannot  convey  the  estate    200  n. 

guardians  hold  property  of  ward  in,  204. 

administrators  and  executors  hold  property  01  estate  in,  58  n.  {a),  205. 

when  possession  of  trustee  becomes  adverse,  200  a.,  212. 

assignees  in  bankruptcy,  etc.,  trustees  for  creditor;,  202. 

statute  in  such  cases  is  suspended  as  to  creditors,  202. 

factors  and  agents  trustees  for  principal,  209,  276  n.  (a) 

partners  trustees  for  each  other,  210. 

trust  created,  how.  207. 

cestui  que  trust  barred  when  trustee  is,  208. 

exceptions  to  the  rule  relative  to  express  trusts,  213. 

stale,  not  favored  in  equity,  214. 

mistake  of  trustee  in  possession,  effect  of  a  cestui  que  trust,  216. 

funds  of  societies  vested  in  trustee,  217. 


842  STATUTES   OF   LIMITATION. 

TR  USTS  —  Continued. 

liability  of  trustee  for  breach  of  trust  creates  trust  debt.  218. 
vendor  and  vendee  of  land,  219. 
purchaser  of  property  for  benefit  of  another,  220. 
See  Laches. 

u. 

UNITED  STATES, 

government,  as  to  claims  for  or  against,  when  bound  by  State  statutes  of 

limitations,  27,  40  a  n.  (a) 
courls  of  laches,  and  effect  of  State  statutes  in,  27,  40  a  and  n.  (a),  149  n,  («) 
in  court  of  claim,  7  n.  (a) 

See  Government. 
USE  AND  OCCUPATION, 

when  action  for,  lies,  statute  relative  to  simple  contract  applies,  although 
there  is  lease  under  seal,  19. 
USURY, 

statute  runs  upon,  from  time  of  payment  of,  58  n.  105,  168. 
equity  will  not  give  relief  against,  when  statute  has  run,  58  n. 

V. 

VENDOR'S  LIEN, 

for  purchase-money,  when  barred  because  debt  is,  21  n.  (a),  235  n.  (a) 

See  Lien. 
VENDOR  AND  VENDEE, 

of  land,  under  contract  to  convey,  vendor  holds  as  trustee,  219,  235  n.  (a) 

action  by  vendee  to  recover  payments,  20  n.  (a) 

w. 

WAGER  OF  LAW, 

operated  as  check  on  stale  demands,  2  and  note. 

only  applied  to  debt  on  simple  contract  and  detinue,  2  n. 
WAGES.     See  Services. 
WAIVER, 

of  the  statute,  by  agreement,  7,  41  n.  (a),  42  n.  (a),  51,  76  n.  (a),  276  n. 
by  parol,  51  n.  (a) 
by  acknowledgment,  in  court  of  claims,  7  n.  (a) 

of  tort  and  suing  in  assumpsit,  21. 
WAR. 

efJecl  of    mi  running  of  statute,  6,  242. 
cm  conditions,  43. 
WARRAN!  V, 

impli  id,  when  statute  begins  to  run  on,  144  (a)  and  n. 

br  .1'  h  of,  173  antl  n.  (</) 

■■1  LClt  Of. 

See  Covenants. 
WELSH  MORI  G  VGES, 

arc,  228. 

1  in  of  the  statute  upon,  228. 


INDEX.  843 

WILL, 

general  direction  in,  to  pay  testator's  debts,  does  not  amount  to  acknowl- 
edgment, 68,  notes, 
creating  a  trust  upon  personal  estate  for  payment  of  debts  will  not  remove 

statute  bar,  68,  notes. 
services  to  be  compensated  by  provision  in,  when  statute  begins  to  run, 
119  n. 
WITNESSED  NOTES.     See  Notes. 
WRIT, 

issue  of,  to  suspend  statute.     See  Judicial  Process. 

Y. 

YEAR, 

meaning  of,  when  employed  in  contracts,  57. 


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